Exhibit | Date | Description of Exhibit | ||
1
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June 26, 2009 | Renewal of Measures against the Acquisition of a Substantial Shareholding of the Company (i.e. Defensive Measures against Takeovers) |
WACOAL HOLDINGS CORP. (Registrant) |
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By: | /s/ Masaya Wakabayashi | |||
Masaya Wakabayashi | ||||
General Manager, Corporate Planning | ||||
Company Name: | Wacoal Holdings Corp. | |||
Representative: | Yoshikata Tsukamoto Representative Director & President |
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(Securities Code: 3591: First Section of the Tokyo and Osaka Stock Exchanges) | ||||
Contact: | Masaya Wakabayashi | |||
General Manager, Corporate Planning | ||||
(Telephone: 075-682-1010) |
(1) | Summary of the Plan |
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(a) | Purpose of the Plan |
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The purpose of the plan is to secure or enhance corporate value and the common
interests of the shareholders by ensuring, in the event of an acquisition of a
substantial shareholding of the company, sufficient information and time for all
shareholders to consider such acquisition, as well as opportunity for discussion
and/or negotiation with the purchaser. |
1
(b) | Formulation of Procedures |
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Under the Plan, the Company will demand, in the event of any purchase or other
similar action or any proposals of such (hereinafter referred to as Purchase),
that any third party who launches or proposes a Purchase (hereinafter referred to
as Purchaser) provide information in advance concerning such Purchase. The Plan
formulates such procedures necessary to achieve its purpose as outlined in (a)
above (see section (2) Procedures of the Plan below for details). |
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(c) | Implementation of the Plan following Gratis Allocation of Share Acquisition
Rights |
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If the Purchaser fails to comply with the procedures as prescribed by the Plan
and conducts the Purchase or in the event of any Purchase by a Purchaser that may
cause obvious harm to the corporate value of the Company and the common interests
of the shareholders, etc. (see section (3) Terms and Conditions for Gratis
Allocation of Share Acquisition Rights below for details), the Company will
conduct a gratis allocation of new share acquisition rights (the Share Acquisition
Rights; see section (4) Outline of Gratis Allocation of Share Acquisition Rights
for its primary content) to all shareholders (excluding the Company) at such time
with terms that prohibit the Purchaser from exercising such rights (discriminatory
treatment) and with a condition to acquire Share Acquisition Rights in exchange for
the Companys shares pursuant to Articles 277-279 of the Corporate Law. |
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If a gratis allocation of Share Acquisition Rights is implemented in
accordance with the procedures under the Plan, and the Share Acquisition Rights are
exercised, or if the shares of the Company are granted to shareholders other than
the Purchaser following the acquisition of Share Acquisition Rights by the Company,
the voting ratio of the Companys shares held by the Purchaser may be diluted by up
to one-third (1/3). |
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(d) | Use of the Independent Committee |
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The Company shall comply with the Regulations of the Independent Committee
(please see Exhibit 2 for details) in order to prevent the board of directors from
making an arbitrary decision concerning the trigger or non-trigger of the gratis
allocation of the Share Acquisition Rights or other matters concerning the
acquisition pursuant to the Plan. In addition, the Company shall ensure
transparency by seeking the judgment of an Independent Committee, which will be
comprised of members appointed from (i) outside directors of the Company, (ii)
outside statutory auditors of the Company or (iii) independent experts (experienced
company managers, persons with a governmental background, legal counsel, certified
public accountants, academic experts, etc.) who shall be independent from the
executive officers of the Company who conduct its operations. Messrs. Mamoru Ozaki
(outside director of the Company), Tomoharu Kuda (outside statutory auditor) and
Naoto Nakamura (outside expert) were appointed as the initial members of the Independent Committee upon the renewal of the Plan (please see Exhibit 3 for their
biographies). |
2
In addition, upon the implementation of the gratis allocation of the Share
Acquisition Rights, if a recommendation is made by the Independent Committee that a
general meeting of shareholders be convened in order to determine the decision of
the shareholders, the board of directors shall convene such general meeting of the
shareholders. |
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Moreover, transparency shall be ensured regarding the course of such
procedures through timely disclosure of relative information to all the
shareholders of the Company. |
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(2) | Procedures of the Plan |
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(a) | Purchase |
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The Plan is applicable in the event of a purchase that falls under either (i)
or (ii) below. In such a case, the Purchaser shall follow the procedures as
prescribed in advance in the Plan. |
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(i) the purchase of share certificates1 issued by the Company that
results in a ratio of ownership of the share certificates2 by a
shareholder3 of more than 20% of such share certificates; or |
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(ii) a public tender offer4 for share certificates5 issued by
the Company that results in a combined ration of ownership6 of share
certificates by the offeror and any of its Affiliates7 of more than 20%
of such share certificates. |
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(b) | Request for Provision of Information to the Purchaser |
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Unless otherwise provided by our board of directors, if a Purchaser intends to
undertake a Purchase, the Purchaser must submit to the Company a document in the
form designated by the Company describing the information specified under each item
below (the Required Information) prior to its launch, as well as an oath by the
Purchaser that the Purchaser will follow the procedures as prescribed in the Plan upon
consummation of the Purchase (collectively, the Explanation of Purchase). |
3
The Company will provide the Explanation of Purchase to the Independent
Committee promptly after receipt. If the Required Information in such Explanation
of Purchase is deemed insufficient by the Independent Committee, the Independent
Committee may request the Purchaser to submit additional information either
directly to the Committee or indirectly, through the board of directors, within an
appropriate period of time as designated by the Independent Committee. In such
case, the Purchaser must submit such additional Required Information within such
designated period. |
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(i) the particulars (including but not limited to the specific name, capital
structure, finances, details of past transactions of the same kind as the Purchase,
the results of such prior transactions, and the effect of such past transactions on
the corporate value of the target company) of the Purchaser and its group
(including any joint shareholders8, persons having a special
relationship and each partner or other member in the case of a fund); |
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(ii) the purpose, method and details of the Purchase (including the amount and type
of consideration, the timeframe, the structure of related transactions, the
legality of the method of Purchase, information regarding the probability of the
implementation of the Purchase, etc.); |
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(iii) the basis of calculation of the Purchase price (including facts and/or
assumptions used in the calculation, the calculation method, information or figures
used in the calculation as well as the expected synergies from the series of
transactions related to the Purchase and the details of such synergies to be
distributed to the minority shareholders); |
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(iv) evidence of funds for the Purchase (including the specific name of the
provider of funds (including any substantial provider), financing method and the
details of any related transactions); |
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(v) the management policies, business plan, capital policy and dividend policy of
the group after Purchase; |
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(vi) the policies for the treatment of the Companys employees, contractors,
clients and other interested parties of the Company; and |
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(vii) the specific measures for avoiding conflicts of interests with the other
shareholders of the Company |
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(viii) any other information as deemed reasonably necessary by the Independent
Committee. |
4
Except in particular circumstances under which the Independent Committee
should discuss and/or negotiate with the Purchaser to continuously request
submission of the Explanation of Purchase and the Required Information, the
Independent Committee will recommend the board of directors to implement a gratis
allocation of Share Acquisition Rights in accordance with the terms as stated in
(d)(i) below if the Independent Committee deems that a Purchaser has launched a
Purchase without following the procedures as prescribed by the Plan. |
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(c) | Examination of Terms and Conditions of Purchase and Negotiation and/or
Proposal of Alternatives with Purchaser |
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(i) Request for Provision of Information to the board of directors |
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When the Explanation of Purchase and, if requested by the Independent
Committee, any additional Required Information are submitted by the Purchaser, the
Independent Committee may, in order to conduct a comparative examination of the
submitted documents with the management plan of the board of directors and the
valuation of the company by the board of directors, or to conduct an examination of
alternative proposals by the board of directors from the perspective of securing
and enhancing the corporate value and the common interests of the shareholders of
the Company, may also request the board of directors to present its opinion
(including reserving opinions) concerning the terms and conditions of such Purchase
as well as to submit any supporting materials, alternative proposals or other
information and/or materials as may be required by the Independent Committee. Such
documents or materials shall be submitted no later than the response deadline set
by the Independent Committee, which will take into account the time necessary for
the collection of information and the examination of the valuation of the business
by the board of directors, including independent experts, as the case may be
(provided that such period does not in principle exceed 60 days). |
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(ii) Examination by Independent Committee |
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If the provision of information and/or materials (including any information
and/or materials additionally requested) from the Purchaser and our board of
directors (in the event submission of information and/or materials are requested as
stipulated in (i) above) is deemed sufficient to commence the examination of terms
and conditions of the Purchase by the Independent Committee, the Independent
Committee will fix a period (up to sixty (60) days) for examination; provided,
however, that such period may be extended by a resolution of the Independent
Committee pursuant to (d)(iii) below (the Examination Period of the Independent
Committee) and inform the Purchaser and our board of directors accordingly. |
5
Based on the information and/or materials provided by the Purchaser and the
Companys board of directors, the Independent Committee will examine and evaluate
the terms and conditions of the Purchase by the Purchaser and will gather and
examine information concerning the management plan, business plans, etc. of the
Purchaser and the Companys board of directors during the Examination Period of the Independent
Committee. In doing so, they will maintain the perspective of ensuring and
enhancing the value of the Company and the common interests of the shareholders.
The Independent Committee may also directly or indirectly through our board of
directors, etc. discuss and/or negotiate with the Purchaser, or propose
alternatives of the board of directors, etc. to the shareholders in order to
improve the terms and conditions of the Purchase from the perspective of ensuring
and enhancing the value of the Company and the common interests of the
shareholders. |
A Purchaser must promptly comply with the request of the Independent Committee
(directly or indirectly through the board of directors, etc.) to provide materials
or other information or to discuss and/or negotiate, if so requested during the
Examination Period of the Independent Committee. |
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The Independent Committee may obtain advice from an independent third party
(including, but not limited to, financial advisors, legal counsel, certified public
accountants, consultants or other experts) at the cost of the Company to ensure
that the judgment of the Independent Committee shall be to the benefit of the value
of the Company and the common interests of the shareholders. |
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(d) | Method of Judgment by the Independent Committee |
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The Independent Committee will advise the board of directors in accordance with the
following procedures if there is a Purchaser |
(i) | Recommendation by the Independent Committee on
Implementation of the Gratis Allocation of Share Acquisition Rights |
The Independent Committee will recommend the board of directors to implement a
gratis allocation of the Share Acquisition Rights, irrespective of the sequence of
the initiation or the termination of the Examination Period of the Independent
Committee, if the Purchase by the Purchaser is deemed to fall under any of the
requirements stipulated in section (3) Requirements for Gratis Allocation of Share
Acquisition Rights. |
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Provided, however, that after giving such recommendation, if the Independent
Committee determines that (a) the Purchaser has withdrawn its proposed Purchase, or
if such proposed Purchase otherwise no longer exists, or (b) there is a change in
the facts or basis upon which such recommendation was made and the Independent
Committee determines that the Purchase by the Purchaser no longer falls under any
of the requirements stipulated in section (3) Requirements for Gratis Allocation
of the Share Acquisition Rights, the Independent Committee may change its decision
until the date before the commencement date of the Exercise Period of the Share
Acquisition Rights (as defined in (f) of section (4) Outline of Gratis Allocation
of the Share Acquisition Rights). This includes recommending to the board of
directors the withdrawal of the gratis allocation of the Share Acquisition Rights (if prior to the effective date
of such gratis allocation) or the gratis allocation of the Share Acquisition Rights
(if after the effective date of such gratis allocation). |
6
Even if the Independent Committee determines that the Purchase falls under any
of the requirements stipulated in section (3) Requirements for Gratis Allocation
of the Share Acquisition Rights below, if the Independent Committee determines
that it is reasonable to obtain the resolution of a general meeting of shareholders
regarding the implementation of the gratis allocation of the Share Acquisition
Rights, it shall recommend to the board of directors that a general meeting of
shareholders be convened and that the implementation of the gratis allocation of
the Share Acquisition Rights be placed on the agenda. |
(ii) | Recommendation by the Independent Committee on
Non-implementation of the Gratis Allocation of Share Acquisition Rights |
(iii) | Extension of Examination Period of the Independent Committee |
7
(e) | Disclosure of Information to Shareholders |
(1) | that there is a Purchaser; |
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(2) | that a Purchase Explanation Document has been provided and an
outline of document details; |
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(3) | that the Required Information has been provided and an
outline of such details; |
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(4) | that the Examination Period of the Independent Committee has
commenced; |
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(5) | in the event of a resolution for an extension of the
Examination Period of the Independent Committee, that such resolution has been
passed and an outline of such details; and |
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(6) | the recommendation of the Independent Committee and an
outline of such details (and where a different recommendation is subsequently
made due to a change in the facts, etc., the fact and an outline of such
details thereof). |
(f) | Resolutions of the Meetings of board of directors; Convocation of a General
Meeting of Shareholders |
8
(3) | Requirements for Gratis Allocation of the Share Acquisition Rights |
9
10
(4) | Outline of Gratis Allocation of the Share Acquisition Rights |
(a) | Number of Share Acquisition Rights |
(b) | Shareholders Eligible for Allocation of Share Acquisition Rights |
(c) | Effective Date of Gratis Allocation of Share Acquisition Rights |
11
(d) | Number of Shares to be Acquired upon Exercise of the Share Acquisition Rights |
(e) | The Amount of Property to be Contributed upon Exercise of the Share
Acquisition Rights |
(f) | Exercise Period of the Share Acquisition Rights |
12
(g) | Terms and Conditions for Exercise |
(h) | Assignment of the Share Acquisition Rights |
(i) | Acquisition of Share Acquisition Rights by the Company |
13
(j) | Others |
(5) | Effective Period, Termination and Change of the Plan |
14
(1) | Impact on Shareholders and Investors at the Time of Renewal of the Basic
Policy and the Plan |
(2) | Impact on Shareholders and Investors at the Time of a Gratis Allocation of
Share Acquisition Rights |
(3) | Necessary Procedures for Shareholders upon a Gratis Allocation of Share
Acquisition Rights |
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(a) | Procedures for the Allocation of Share Acquisition Rights |
15
(b) | Procedures for Exercise of Share Acquisition Rights |
(c) | Procedures for the Acquisition of Share Acquisition Rights by the Company |
16
(1) | The Plan is in accordance with the Basic Policy regarding Parties controlling
the Decisions of Financial and Business Policies of the Company |
(2) | The Plan does not undermine the common interests of the Shareholders and
moreover, does not aim to maintain the position of the officers of the Company. |
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(a) | Full Compliance with Requirements of Guidelines for Defensive Measures
against Takeovers |
(b) | Focus on Shareholders Intentions |
17
(c) | Focus on Judgment of Independent, Outside Persons and Information Disclosure |
(d) | Establishment of Reasonably Objective Requirements |
(e) | Opinion of Outside Experts |
18
(f) | Term of Office of the Companys Director is One Year |
19
1. | Total number of authorized shares: 500,000,000 shares |
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2. | Total number of issued and outstanding shares: 143,378,085 shares |
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3. | Total number of shareholders: 11,038 shareholders |
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4. | Major shareholders (top 10): |
Name of shareholder | Number of shares of |
Shareholding Ratio (%) |
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the Company held by | ||||||||||||
shareholder | ||||||||||||
(Thousands of shares) | ||||||||||||
The Bank of New York Mellon, as
depository bank for depository
receipt holders |
17,396 | 12.38% | ||||||||||
Meiji Yasuda Life Insurance Company |
6,999 | 4.98% | ||||||||||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
6,986 | 4.97% | ||||||||||
Mika Noguchi |
6,701 | 4.77% | ||||||||||
Japan Trustee Services Bank, Ltd.
(Trust Account 4G) |
5,509 | 3.92% | ||||||||||
Nippon Life Insurance Company |
5,460 | 3.88% | ||||||||||
The Bank of Kyoto, Ltd. |
4,264 | 3.03% | ||||||||||
The Dai-ichi Mutual Life Insurance Company |
3,912 | 2.78% | ||||||||||
The Shiga Bank, Ltd. |
3,376 | 2.40% | ||||||||||
Mitsubishi UFJ Trust and Banking Corporation |
3,050 | 2.17% | ||||||||||
(Note) | The investment ratio is calculated based on the number of issued shares as of the end of
fiscal 2009 excluding the number of shares of treasury stock held by the Company. |
20
- | The Independent Committee shall be established by resolution of the
board of directors. |
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- | The Independent Committee shall be composed of three or more members,
and the board of directors shall elect the members from (i) outside
directors of the Company, (ii) outside statutory auditors of the
Company or (iii) other outside experts who are independent from the
executive management of the Company. Provided, however, that such
experts must be experienced company managers, persons with a
governmental background, legal counsel, certified public accountants
or academic experts or other persons with similar qualifications, and
must also have executed with the Company an agreement separately
designated by the board of directors that contains a provision that
prescribes the duty of care of a good manager or similar provision. |
|
- | Unless otherwise determined by a resolution of the board of directors,
the term of office of members of the Independent Committee shall
expire upon the conclusion of the ordinary general meeting of
shareholders held in respect of the last fiscal year ending within
three (3) years after the conclusion of the Shareholders Meeting.
The term of office of any member of the Independent Committee who is
an outside director or outside statutory auditor shall expire
simultaneously upon the expiration of the term of office as a director
or statutory auditor (except in the case of their re-appointment). |
|
- | The Independent Committee shall make decisions on the matters listed
below and provide recommendation to the board of directors together
with the details and reasons for such recommendation. Giving its
utmost respect to such recommendation of the Independent Committee,
the board of directors shall make decisions as a function under the
Corporate Law. (Provided, however, that in the event the
implementation of the gratis allocation of the Share Acquisition
Rights is placed on the agenda in the Shareholders Meeting, the
Independent Committee shall follow the resolution such Shareholders
Meeting.) Each member of the Independent Committee and each director
of the Company must make such decisions solely for the purposes of
securing or enhancing corporate value and the common interests of
shareholders, and they must not serve the purpose of their own
interests or those of the management of the Company: |
(i) | the implementation or non-implementation of the gratis allocation of the
Share Acquisition Rights (including the convocation of a general meeting of
shareholders and the placement of the implementation of the gratis allocation of the
Share Acquisition Rights on the agenda); |
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(ii) | the cancellation of the gratis allocation of the Share Acquisition Rights or
the gratis acquisition of the Share Acquisition Rights; |
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(iii) | any other matters consulted by the board of directors that are to be
determined by the board of directors. |
21
- | In addition to the matters prescribed above, the Independent Committee shall conduct the
following: |
(i) | determining whether a Purchase should be made subject to the Plan; |
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(ii) | determining the information that a Purchaser and the board of directors
should provide to the Independent Committee, and the deadline for the provision of
such information; |
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(iii) | Examination and consideration of the terms of a Purchase by a Purchaser; |
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(iv) | Negotiation and discussion with the Purchaser; |
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(v) | Request the board of directors for alternative proposals and/or examination
of the alternative proposals; |
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(vi) | Decisions of the Independent Committee to extend the Examination Period; |
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(vii) | Approvals of the termination and change of the Plan |
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(viii) | Any other matters that the Plan prescribes that the Independent Committee may
conduct; and |
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(ix) | Any matters separately determined by the board of directors. |
- | If the information stated in the Explanation of Purchase or the information submitted is deemed insufficient by the
Independent Committee as Required Information, the Independent Committee may request the Purchaser to submit additional
Required Information. The Independent Committee may also request the Companys board of directors to present its opinion
concerning the terms and conditions of a Purchase and to submit any supporting materials, alternative proposals (if any) or
other information and/or materials as may be required from time to time by the Independent Committee within a certain
period. |
|
- | The Independent Committee shall, whenever necessary for the purposes of ensuring and enhancing the corporate value of the
Company and the common interests of its shareholders , discuss and/or negotiate with a Purchaser directly or indirectly
through the board of directors, etc. and shall also present alternative proposals of the Companys board of directors,
etc. to the shareholders. |
|
- | The Independent Committee may request the attendance of a director, statutory auditor or employee of the Company, or any
other party that the Independent Committee deems necessary, and may require explanation of any matter it request in order
to collect necessary information. |
|
- | The Independent Committee may, at the cost of the Company, obtain the advice of an independent outside experts (including
financial advisers, legal counsel, certified public accountants, consultants and other experts). |
|
- | Any member of the Independent Committee may convene a meeting of the Independent Committee if a Purchase arises, or at any
other time. |
22
- | The resolutions of meeting of the Independent Committee shall be adopted by a majority of all members of the Independent
Committee. Provided, however, that in unavoidable circumstances, a resolution may be adopted with a majority of voting
rights of the members at which the majority of Independent Committee is in attendance. |
23
June 1991
|
Commissioner of the National Tax Agency | |
June 1992
|
Administrative Vice Minister of Finance | |
May 1994
|
President of Peoples Finance Corporation | |
October 1999
|
President of National Life Finance Corporation | |
February 2003
|
Acting Advisor to Yazaki Corporation (present) | |
July 2003
|
Advisor to Wacoal Corporation (currently Wacoal Holdings Corp.) | |
June 2005
|
Acting Director of Wacoal Corporation (currently Wacoal Holdings Corp.) (present) |
Sep 1972
|
Joined Deloitte Haskins & Sells | |
Oct 1979
|
Registered as Certified Public Accountant | |
Sep 1987
|
Transferred to London Office (U.K.) | |
Feb 1990
|
Partner of Deloitte Touche Tohmatsu (merged with Tohmatsu) | |
Jun 1997
|
Representative Partner of Deloitte | |
Jun 2007
|
Corporate Auditor of Wacoal Holdings Corp. |
October 1982
|
Passed the Japanese bar exam | |
April 1985
|
Graduated from the Legal Training and Research Institute Registered with Daini Tokyo Bar Association, joined Mori Sogo Law Offices | |
April 1998
|
Opened Hibiya Park Law Offices, Partner | |
February 2003
|
Opened Naoto Nakamura Law Office (currently the Nakamura, Tsunoda & Matsumoto) |
24
I. | Determination of Matters Concerning Share Acquisition Rights |
(1) | Details and Number of Share Acquisition Rights |
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The details of the share acquisition rights to be allocated to the shareholders (each a
Share Acquisition Right and collectively the Share Acquisition Rights) shall be
described in Section II. Below, and the number of Share Acquisition Rights shall be
separately determined by the board of directors or the Shareholders Meeting in a
resolution relating to the gratis allocation of the Share Acquisition Rights (the Gratis
Allocation Resolution) up to a maximum of twice the final number of outstanding shares
of the Company as of a certain date (the Allocation Date) that is separately determined
board of directors in the Gratis Allocation Resolution. |
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(2) | Shareholders Eligible for Allocation of Share Acquisition Rights |
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The Company will implement a gratis allocation of the Share Acquisition Rights to those
shareholders, other than the Company, who are registered or recorded in the Companys
final register of shareholders as of the Allocation Date up to a maximum of two Share
Acquisition Rights for every one common stock of the Company held at a rate as separately
prescribed in the Gratis Allocation Resolution. |
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(3) | Effective Date of Gratis Allocation of Share Acquisition Rights |
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The effective date of the gratis allocation of the Share
Acquisition Rights will be separately determined in the Gratis
Allocation Resolution. |
II. | Particulars of Share Acquisition Rights |
(1) | Number of Shares to be Acquired upon Exercise of the Share Acquisition Rights |
(a) | The number of shares of common stock to be acquired for every one Share
Acquisition Right (the Shares) shall be one (1) share. In the event of split or
consolidation of the shares of the Company, however, the Shares shall be adjusted in
accordance with the following formula and any fraction less than one (1) share
resulting from such adjustment shall be disregarded and no cash shall be used for
such adjustment: |
Adjusted Shares |
= | Shares before Adjustment |
x | Ratio of Split/Consolidation |
(b) | The adjusted Shares shall be applied on and after the following day of
the record date in case of a split of shares and on and after the following day of
the effective date in case of a consolidation of shares. |
25
(c) | In addition to the matters in 1) above, if the Shares are required to be
adjusted due to gratis allocation of shares, merger, corporate split or any other
actions which changes or may change the outstanding shares of the Company (but
excluding the treasury stocks held by the Company), the Shares shall be adjusted to
the extent reasonable in view of the terms of such gratis allocation of shares,
merger, corporate split or any other actions. |
(2) | The Amount of Property to be Contributed upon Exercise of the Share Acquisition
Rights |
(a) | The contribution to be made upon exercise of the Share Acquisition Rights
shall be in money, and the value of property shall be the amount obtained by
multiplying the Exercise Price (as defined in 2) below) and the Shares. |
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(b) | The value of property per share of common stock of the Company to be
contributed upon the exercise of the Share Acquisition Rights (the Exercise Price)
shall be at least one (1) yen but not exceeding one-half (1/2) of the market value
of one share of common stock of the Company as separately determined in the Gratis
Allocation Resolution. The market value means an amount equivalent to the average
closing price (including quotations) for regular transactions of the stock of the
Company on the Tokyo Stock Exchange on each day during the ninety (90) day period
prior to the Gratis Allocation Resolution (excluding the days on which trades are
not made), and any fraction less than one (1) yen shall be rounded up to the nearest
one (1) yen. |
(3) | Exercise Period of the Share Acquisition Rights |
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The commencement date will be a date on which the gratis allocation of the Share
Acquisition Rights becomes effective or a date otherwise determined in the Gratis
Allocation Resolution, and the period will be between one and two months as determined
in the Gratis Allocation Resolution. Provided, however, that if the Share Acquisition
Rights are acquired by the Company pursuant to paragraph 2) of (7) below, the exercise
period for the Share Acquisition Rights subject to such acquisition shall be until the
immediately preceding business day of such acquisition date. In addition, the last day
of the exercise period shall be the previous business day if the last day of the exercise
period falls on a holiday of the bank handling the money to be paid in upon exercise of
such rights. |
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(4) | Terms and Conditions for Exercise |
(a) | (A) A specified large shareholder, (B) joint shareholders of a specified
large shareholder, (C) a specified large purchaser, (D) persons having a special
relationship with a specified large purchaser, (E) any transferee of or successor to
the Share Acquisition Rights of any party falling under (A) through (D) above
without the approval of the board of directors, or (F) any affiliate of any party
falling under (A) through (D) above (collectively the Unqualified Parties) may not
exercise Share Acquisition Rights. |
26
The terms used in the above paragraph shall have the meaning as defined below: |
(i) | Specified large shareholders (tokutei tairyo hoyusha) means
a holder (including other party deemed as a holder pursuant to Paragraph 3 of
Article 27-23 of the Financial Instruments and Exchange Law (FIEL)) of share
certificates (as defined in Paragraph 1, Article 27-23 of FIEL; unless
otherwise provided the same shall apply hereinafter) issued by the Company and
whose ratio of ownership (as defined in Paragraph 4 of Article 27-23 of FIEL)
in respect of such share certificates is deemed to be at least 20% by the
board of directors. |
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(ii) | Joint shareholders (kyodo hoyusha) shall have the meaning
as prescribed in Paragraph 5, Article 27-23 of FIEL and shall include any
party who is deemed to be a joint shareholder by the board of directors in
accordance with Paragraph 6 of said Article. |
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(iii) | Specified large purchaser (tokutei tairyo kaitsukesha)
means a person who makes a public announcement of Purchase (as defined in
Paragraph 1, Article 27-2 of FIEL; the same shall apply in (iii)) of share
certificates (as defined in Paragraph 1, Article 27-2 of FIEL; the same shall
apply in (iii)) issued by the Company through public tender offer and whose
ratio of ownership of share certificates after such purchase (including
similar ownership as prescribed in Paragraph 1, Article 7 of the Enforcement
Order of the FIEL) is deemed by the board of directors to be at least 20% when
combined with the ratio of ownership of share certificates of a person having
a special relationship. |
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(iv) | A person having a special relationship
(tokubetsu-kankeisha) means a person having special relationship as defined in
Paragraph 7 of Article 27-2 of FIEL and shall include any party who is deemed
to be a person having a special relationship by the board of directors;
provided, however, the persons prescribed in Paragraph 1, Article 3 of the
Cabinet Officer Order Concerning Disclosure Relating to Tender Offer of Shares
or Other Securities by Any Person Other Than the Issuing Company shall be
excluded with respect to persons stipulated in item 2 of said Paragraph 7. |
||
(v) | Affiliate (kanrensha) of a given party means a person
deemed by the board of directors to substantially control, be controlled by,
or be under common control with such given party, or a party deemed by the
board of directors to act in concert with such given party. Control means
to control the determination of the financial and business policies (as
defined in Paragraph 3, Article 3 of the Enforcement Regulations of the
Corporate Law) of other corporations or entities. |
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(b) | Notwithstanding paragraph 1) above, the following parties shall not be
deemed as specified large shareholders or specified large purchasers: |
(i) | a subsidiary (as defined in Paragraph 3, Article 8 of the
Rules concerning the Terms, Format and Preparation Method of Financial
Statements) or an affiliate (as defined in Paragraph 5, Article 8 of said
Rules) of the Company; |
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(ii) | a party who is deemed by the board of directors to fall under
Specified large purchaser in paragraph 1) (i) above without having an
intention to control the Company and who is no longer a specified large
shareholder stipulated in paragraph 1) (i) above due to disposition of its
share certificates of the Company within ten (10) days (provided that the
board of directors may extend such period) after it is deemed as a specified
large shareholder; |
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(iii) | a party is deemed by the board of directors that it has
become a specified large shareholder without its intention due to the
repurchase of stock by the Company or other reasons, except if such party, at
its intention, acquires the share certificates of the Company thereafter; |
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(iv) | a party who is deemed by the board of directors that the
acquisition and/or holding of share certificates of the Company by such party
would not conflict with the corporate value of the Company or the common
interests of the shareholders (a party who is deemed as an Unqualified Party
by the board of directors may also be deemed that it does not conflict with
the corporate value of the Company or the common interests of the shareholders
and but only if certain conditions are satisfied when the board of directors
deems that it does not conflict with the corporate value of the Company or the
common interests of the shareholders under certain conditions). |
(c) | If it is required under applicable foreign laws and regulations (i) to
follow certain procedures or (ii) to fulfill certain requirements (including the
prohibition of exercise for a certain period, the submission of prescribed documents
etc.), or (iii) both of (i) and (ii) above (collectively the Exercise Procedures
and Requirements under Governing Law) upon exercise of the Share Acquisition Rights
by a party residing in the jurisdiction of such Governing Law, such party may
exercise the Share Acquisition Rights only if the board of directors deems that the
Exercise Procedures and Requirements under Governing Law have been performed or
fulfilled and may not exercise the Share Acquisition Rights if deemed unsatisfied by
the board of directors. The board of directors shall not be liable to perform or
fulfill any Exercise Procedures and Requirements under Governing Law that must be
performed or fulfilled by the Company upon exercise of the Share Acquisition Rights
by a party resided in such jurisdiction. Further, a party residing in such
jurisdiction may not exercise the Share Acquisition Rights if the exercise of the
Share Acquisition Rights by such party is not permitted under the applicable laws or
regulations in such jurisdiction. |
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(d) | Notwithstanding paragraph 3) above, a U.S. resident may exercise the
Share Acquisition Rights only if it (i) represents and warrants
to the Company that it is an accredited investor as defined in Rule 501 (a) of the U.S.
Securities Law of 1933, and (ii) makes an oath that it would resell the shares of
common stock of the Company to be acquired upon exercise of its Shares Acquisition
Rights only through regular transactions on the Tokyo Stock Exchange and Osaka
Securities Exchange (but shall not make any advance arrangements and solicitation
of the shares). Only in such case, the Company shall perform or fulfill the U.S.
Securities the Exercise Procedures and Requirements under Governing Law under
Regulation D of the U.S. Securities Act of 1933 and U.S. state laws that are
required to be performed or fulfilled by the Company for exercise of the Share
Acquisition Rights by a party resided in the United States. A party residing in
the United States may not exercise the Share Acquisition Rights if the board of
directors determines that such party is not permitted to legally exercise the Share
Acquisition Rights under the U.S. Securities Act due to a change in the law of the
United States or for other reasons, even though such party satisfies the conditions
as described in (i) and (ii) above. |
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(e) | A holder of the Share Acquisition Rights may exercise the Share
Acquisition Rights only if such holder submits to the Company a written statement
containing the representations and warranties including, but not limited to, the
fact that the holder is neither an Unqualified Party nor a party who has an
intention to exercise the Share Acquisition Rights for or on behalf of any
Unqualified Parties and that the holder satisfies the conditions for the exercise of
the Share Acquisition Rights, indemnity clauses and other pledges prescribed by the
Company, as well as any written statement required under the laws and regulations. |
||
(f) | Even if a holder of the Share Acquisition Rights is unable to exercise
its Share Acquisition Rights pursuant to the provisions of this Section (4), the
Company shall not be liable to such holder of the Share Acquisition Rights for
damages or any other obligations. |
(5) | Capital and Capital Reserve to be Increased upon Issuance of Shares by Exercise of
the Share Acquisition Rights |
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The amount of capital to be increased upon issuance of shares of the Company by exercise
of the Share Acquisition Rights and the amount of capital reserve shall be as separately
determined in the Gratis Allocation Resolution. |
|||
(6) | Restrictions on Transfer of Share Acquisition Rights |
(a) | Any acquisition of the Share Acquisition Rights by assignment required
the approval of the board of directors. |
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(b) | If a party who intends to assign the Share Acquisition Rights is residing
outside Japan and is unable to exercise the Share Acquisition Rights pursuant to the
provisions of paragraph 3) and 4) of Section (4) above (excluding the Unqualified
Parties), the board of directors shall determine whether to give such approval in
paragraph 1) above in view of the following matters: |
(i) | whether or not a written undertaking prepared and signed or
sealed by the transferor and transferee (including provisions for
representations and warranties, indemnity provisions and provisions for
penalties with respect to the matters described in (ii) through (iv) below) is
submitted with respect to the acquisition by assignment of all or part of the
Share Acquisition Rights by a party who resides in such jurisdiction; |
||
(ii) | whether or not it is clear that the transferor and transferee
do not fall under Unqualified Party; |
||
(iii) | whether or not it is clear that the transferee does not
reside in such jurisdiction and does not intend to accept the Shares
Acquisition Rights for a party residing in such jurisdiction; |
||
(iv) | whether or not it is clear that the transferee does not
intend to accept the Share Acquisition Rights for the Unqualified Parties. |
(7) | Acquisition of the Share Acquisition Rights by the Company |
(a) | The Company may, at any time prior to the day immediately preceding the
initial day of the exercise period of the Share Acquisition Rights, acquire all
Share Acquisition Rights without any consideration therefor on a certain date that
is separately determined by the board of directors if such acquisition of the Share
Acquisition Rights by the Company is deemed appropriate. |
||
(b) | On a certain date as separately determined by the board of directors, the
Company may acquire any and all Share Acquisition Rights held by the Unqualified
Party that have not been exercised by the immediately preceding business day of such
certain date as determined by the board of directors and may grant the Shares for
every one Share Acquisition Right in exchange therefor. The Company may conduct
such acquisition of the Share Acquisition Rights. After the date of such
acquisition, the Company may, in the event the board of directors deems parties
other than Unqualified Parties to exist among the shareholders of the Stock
Acquisition Rights, on a date later than the above date of such acquisition as
separately determined by the board of directors, acquire all of the Share
Acquisition Rights held by such parties of which have not been exercised as of the
business day immediately prior to such date as determined by the board of directors,
and may grant the Shares for every one Share Acquisition Right in exchange therefor.
The same shall apply hereinafter. |
||
(c) | Other events in which the Company may acquire Share Acquisition Rights
and the terms and conditions thereof shall be as separately determined in the Gratis
Allocation Resolution. |
(8) | Delivery of the Share Acquisition Rights and Conditions in case of Merger (only if
the Company is the liquidating party in such merger), Corporate Split (by absorption or
incorporation), Share Exchange and Share Transfer These matters shall be separately determined in the Gratis Allocation Resolution. |
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(9) | Issuance of Certificates Representing the Share Acquisition Rights |
||
Certificates representing the Share Acquisition Rights will not be issued. |
|||
(10) | Other matters pertaining to the substance of the Share Acquisition Rights shall be
separately determined in the Gratis Allocation Resolution. |
||
(11) | Revision due to Amendment to Laws and Ordinances |
||
The provisions of laws and ordinances referred to above are subject
to the prevailing provisions as of June 26, 2009. If it becomes
necessary after such date to amend the provisions or definitions of
terms set forth in the preceding paragraphs due to the enactment,
amendment or abolishment of laws and ordinances after June 26, 2009,
the board of directors may replace the meanings of such provisions or
definitions of terms to be read accordingly as required to the extent
reasonable after taking into consideration the purposes of such
enactment, amendment or abolishment. |
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