In 2020, the global M&A market faced a sharp slowdown in deal making due to the outbreak of COVID-19. Nevertheless, the Japanese M&A market continued to be active (indeed, according to Refinitiv, the number of deals in the first half of 2020 was 2,178, the highest figure on record), and private equity buyers have also continued their investments.
At the same time, there has been a rapid decrease in cross-border transactions and a slowdown in outbound M&A deals is expected to continue for some time. According to Refinitiv, outbound deals in the first half of 2020 declined by 69.6% in deal value from the corresponding period of 2019, being the lowest since 2013. Many Japanese companies are adopting a “wait-and-see” approach amid the COVID-19 outbreak, and it may take some time before they resume pursuing outbound deals.
However, given that the aging population and shrinking economy will continue to make it necessary for Japanese companies to pursue overseas growth opportunities, M&A activity is likely to rebound swiftly in the near future once market confidence is restored.
In response to the Japanese government’s policy to reduce the number of listed companies that are subsidiaries of listed parents, we have seen an increasing number of domestic deals in 2019 where the parent of a listed subsidiary either buys out the subsidiary or sells its holdings in the subsidiary to a third party. This trend has continued in the first half of 2020, and notable deals include the acquisition by Hitachi, Ltd of its listed subsidiary, Hitachi Technologies Corporation, and the acquisition of Sony Financial Holdings Inc by Sony Corporation. According to Refinitiv, these two deals are the first and second in ranking in terms of deal value in the first half of 2020 (JPY531 billion for Hitachi and JPY395 billion for Sony).
In the small- to mid-cap market, domestic M&A deals of family-owned businesses is likely to continue as founders have difficulty in handing over their business to family members or employees and decide to sell the business to third-party buyers, including private equity buyers.
Foreign Investment Regulations
Expanded scope of foreign investment review
There has been a major amendment to the Foreign Exchange and Foreign Trade Act (FEFTA), which regulates, among others, foreign direct investments in Japan. The amendment came into effect as of 8 May 2020 and is applicable to foreign direct investments in Japan consummated on or after 7 June 2020. While Japan has long required foreign investors to make a prior notification and undergo screening prior to investments in designated business sectors, the amendment expanded the scope of covered transactions.
As a result of the amendment, the threshold for the prior notification requirement for acquisition of listed shares engaged in designated business sectors was lowered from 10% to 1%. To strike a balance, the amended FEFTA concurrently introduced exemptions from such prior notification requirement, which are available for passive investors who are not foreign governments, SWFs or SOEs (save for those specifically accredited by the Ministry of Finance (MOF)), if they comply with certain exemption conditions to ensure that they remain passive investors. Such exemption conditions include a requirement to not cause their closely related persons to become a board member of the target, to not propose to the shareholders’ meeting any transfer of business in any designated business sector, and to not to access any non-public technology information of the target relating to any designated business sector.
Under the amended FEFTA, the designated business sectors which will trigger the prior notification requirement are classified into core sectors and others, where the core sectors cover more sensitive sectors such as weapons, dual-use technologies, nuclear, aircraft, certain cybersecurity and telecommunications. If the target engages in any core-sector business, the above-mentioned exemption from the prior notification requirement will be available only if the foreign investor is a financial institution regulated in Japan or subject to foreign regulation equivalent to that of Japan, or if the relevant investment is an acquisition of listed shares up to (but not including) 10% and the foreign investor complies with even more stringent exemption conditions. The MOF has compiled and published a list categorising Japanese listed companies into the three categories:
The list, however, has been prepared for convenience purposes only, and the foreign investor’s reliance on it will not necessarily be protected.
An asset transaction (including statutory demerger and merger) will also trigger the prior notification requirement under the amended FEFTA, if it is an acquisition of a business in any designated business sector from a Japanese company by a foreign investor.
Review on exercise of voting rights
Under the amended FEFTA, a foreign investor is also required to make a prior notification before it exercises its voting rights at the shareholders’ meeting of a Japanese company to:
This requirement will not apply if the foreign investor acquired the shares of the target after making the prior notification (ie, not relying on the exemption), or the target is a listed company and the holding of the foreign investor does not exceed 1%.
For the past several years, the Japanese government has tightened its review on foreign direct investments, and this tendency will certainly continue following the amendment to the FEFTA. Foreign investors, especially SOEs or investors closely related to foreign governments or SOEs, are recommended to analyse the implication of the FEFTA process on any deal-making in Japan.
Corporate Governance Code and Stewardship Code
As part of the continued efforts to enhance the corporate governance of Japanese listed companies, the Tokyo Stock Exchange adopted the CG Code in 2015 and revised it in June 2018. The CG Code adopts the “comply-or-explain” approach and sets forth principles for effective corporate governance for Japanese listed companies, which, among others, require listed companies to give weight to the cost of capital in determining their business portfolio and resource allocation. The emphasis on the cost of capital may encourage Japanese listed companies to dispose of their non-core businesses and focus on expanding their competitive edge through M&A.
In addition, the Japanese Financial Services Agency (FSA) introduced a Japanese version of a Stewardship Code in February 2014 and subsequently revised it twice – in May 2017 and March 2020. The Stewardship Code describes the principles considered to be helpful for institutional investors in fulfilling their stewardship responsibilities towards their clients, beneficiaries and companies when they engage with corporates. The FSA announced that, as of June 30, 2020, 284 institutional investors have adopted the Stewardship Code. In the latest revised code, it is stipulated, among others, that institutional investors should disclose not only the voting records for each investee company but also the reason why they voted for or against each agenda item and that proxy advisors should dedicate sufficient management resources to ensure sound judgement in the evaluation of companies and furnish their services appropriately. These developments are affecting the stewardship activities by institutional investors, including the exercise of voting rights, which is also affecting M&A practices in Japan.
More than ten years after it formulated guidelines for management buyouts in 2007, the Ministry of Economy, Trade and Industry of Japan (METI) released fully revised guidelines for M&A transactions involving conflicts of interest in June 2019, titled the “Fair M&A Guidelines; Enhancing Corporate Value and Protecting Shareholders’ Interest” (the “Fair M&A Guidelines”), which cover not only management buyouts, but also acquisitions of a controlled company by a controlling shareholder.
Private equity M&A in which incumbent management participates (management buyouts) will be within the scope of the Fair M&A Guidelines, and, as a practical matter, compliance with the guidelines is likely to have an impact on appraisal rights litigation brought by shareholders who dissent to squeeze-outs.
Many of the proposals in the Fair M&A Guidelines have already been part of market practice, but the Fair M&A Guidelines indicate a clear preference to include outside directors as members of special committees, rather than having special committees comprised solely of outside non-director experts (which has been the case with some past management buyouts). The Fair M&A Guidelines also suggest that the special committee should ideally get involved in negotiations with potential acquirers and receive advice from advisers retained by the special committee independently from the target, both of which have been relatively rare in practice.
While it has been customary in a two-step acquisition for the acquirer to set a long enough offer period in the first-step tender offer to enable any potential acquirer to commence a competing bid, active shopping has been very rare. The Fair M&A Guidelines cite the effectiveness of an active market check in management buyouts, and it remains to be seen how the M&A market will react to such suggestion. According to the Tokyo Stock Exchange, within one year after the release of the Fair M&A Guidelines, there were total 26 transactions (ten management buyouts and 16 acquisitions conducted by a controlling shareholder) which are within the scope of the guidelines.
In the press releases in relation to these transactions, companies generally tended to provide more detailed information with respect to their special committees than those in the similar transactions announced before the release of the Fair M&A Guidelines. For example, in 12 transactions out of 26, each of the press releases states that the special committee was granted authority to retain its advisors independently from the targets and, in other eight transactions, the special committees were permitted to utilise the advisors retained by the targets. Also, in six transactions out of 26, it is stated that the special committees were granted authorities to get involved in the negotiations with potential acquirers and in other 17 cases, it is mentioned that the special committees are substantially involved in the negotiations through the targets.
Change in Tax Law
There were several M&A-related tax amendments in 2017 and 2018, which will potentially have a significant impact on M&A structuring. Among others, there were amendments to the taxation of the following:
Due to these amendments, private equity buyers will have broader structuring options for squeeze-outs, and will be able to propose tax-free spin-out transactions to sellers as a structuring option. The implications of the amendment to the taxation of a stock-for-stock transaction are discussed below.
A number of legal and tax changes have been and will be made to facilitate stock-for-stock acquisitions by Japanese companies, and an increase in such acquisitions is expected. Not all private equity buyers would be able to propose a stock-for-stock acquisition, but these tax changes will add more options for acquisition consideration, and could affect the competitive landscape in the M&A market.
Under the Companies Act, there is currently a transaction called a Stock-for-stock Exchange (kabushiki kokan), which can only be adopted when the acquirer intends to acquire all issued shares of the target. An acquisition of only part of the issued shares of the target in exchange for the acquirer’s shares (eg, an exchange offer for a listed target) is theoretically permissible under the Companies Act by means of issuance of the acquirer’s shares in exchange for an in-kind contribution of the target’s shares. However, it is subject to a requirement that a court-appointed inspector investigates the value of the target’s shares prior to the issuance of the acquirer’s shares, and the target’s shareholders receiving the acquirer’s shares must indemnify the acquirer if it later turns out that the value of the target’s shares significantly falls short of the value on which the issuance of the acquirer’s shares was based. Such requirement tends to be prohibitively burdensome.
The Act on Strengthening Industrial Competitiveness, as amended in 2018, is a special measures act administered by METI that lifts such burdensome requirement, on the condition that the acquisition plan is reviewed and approved by the ministry governing the relevant industry in advance. Tax law was concurrently amended to grant a tax deferral on capital gains upon an exchange of shares conducted pursuant to the Act, if such exchange meets certain additional requirements. In addition, as part of the amendments to the Companies Act promulgated in December 2019, a transaction called a “Share Delivery (kabushiki kofu)” will become available by June 2021, which will allow a Japanese corporation to conduct a similar share exchange transaction with another Japanese corporation without the need for approval of the acquisition plan if the target is not a subsidiary of the acquiror prior to the transaction, but will become a subsidiary following it.
Under the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (the “Anti-Monopoly Act”), the acquisition of a company or business with Japanese domestic turnover can be subject to pre-transaction notification to – and clearance from – the Japan Fair Trade Commission (JFTC).
A stock acquisition is subject to such requirement if:
There are comparable rules (with slightly different turnover thresholds) that apply to asset acquisitions, mergers, demergers and other types of business combination transactions. Depending on the fund structure, the domestic turnover of portfolio companies of a private equity fund may be aggregated in applying the thresholds.
The statutory waiting period after the notification is 30 days, which may be shortened by JFTC upon request, assuming there is no substantive competition issue. On the other hand, if JFTC identifies any competition issue, it may extend the period and request additional information from the acquirer.
As described in 2.1 Impact on Private Equity, Foreign Investment Regulations, the jurisdiction of the FEFTA, which regulates foreign inward investments in Japan, is now very broad following the amendment.
As discussed above, a wide range of investments may be subject to the prior notification requirement. Furthermore, post facto reporting will be required in many cases even if the relevant investments are not subject to the prior notification requirement, including when a foreign investor relies on the exemption from the prior notification.
Both the prior notification and post facto reporting will be submitted to the Bank of Japan, and will be circulated for review by the MOF and other ministries supervising the industries in which the target engages. A statutory waiting period of 30 days will apply for a prior notification, which can be extended up to five months, but may be shortened to two weeks or even shorter if the investment does not relate to national security. A post facto reporting must be made within 45 days of the investment.
Aside from the regulations under the Anti-Monopoly Act and the FEFTA, going-private transactions must comply with security regulations governed by the FSA, including the mandatory tender offer and disclosure requirements (see 7 Takeovers), and the listing rules of Tokyo Stock Exchange.
An acquirer typically conducts a due diligence investigation with the assistance of legal counsel and other advisers, and it typically covers business, legal, finance and tax matters. Of course, if the acquisition is made by way of an unsolicited offer, the acquirer would need to rely on annual reports and publicly available information on the target. However, it should be noted that Japan does not have any public database for litigation or lien searches, which limits the ability to conduct due diligence without the co-operation of the target.
A typical legal due diligence investigation of a Japanese target covers capitalisation, corporate governance, material contracts and assets, debt and other liabilities, employment, governmental authorisations, legal compliance, and litigation and disputes. For a private equity acquirer, the investigation of debt and material assets would involve analysis of the prepayment terms of existing indebtedness and consideration of a security package to be negotiated with the debt provider.
Corruption risks pertaining to business conducted in Japan are generally considered low, but the Japanese government is paying closer attention to foreign corrupt practices of Japanese companies, and strengthening enforcement. As such, due attention should be paid to whether the target has sufficient systems in place to control foreign corruption risk.
Like many other jurisdictions, there is increasing business focus on customer and user data, which means that data protection compliance is becoming a new focus of legal due diligence.
It is not common for a buyer to be able to see or rely upon a vendor financial due diligence report or vendor legal due diligence report, even in an auction sale. A vendor may conduct its own due diligence investigation in order to prepare it for negotiations with potential buyers, but that is different from a full-scale due diligence, and results would not typically be shared with potential buyers.
If a vendor were to provide any due diligence report to a potential buyer, it would usually be on a non-reliance basis only. As discussed separately, the use of warranty and indemnity (W&I) insurance in Japan is still at an early stage, and stapling W&I insurance to a sale is rarely seen.
On the other hand, a buyer would usually be able to rely on due diligence reports prepared by its own advisers, but the buyer’s equity and debt providers are not typically permitted to rely on reports prepared by the buyer’s advisers.
The acquisition of a non-listed company by a private equity buyer would typically be structured as a stock sale, unless there is a specific reason to prefer an asset sale (eg, a high risk of hidden liabilities).
The acquisition of a business by a private equity buyer from a company, whether listed or non-listed, would typically be carried out in the form of a straightforward asset sale or statutory demerger (kaisha bunkatsu) under the Companies Act. The transferred assets and assumed liabilities can be specified in both scenarios, and there is no difference in the effectiveness of the separation of liabilities. It is not necessary to obtain consent from creditors in order to complete a statutory demerger. Instead, there are required procedures that must be implemented to protect creditors and employees, which would take at least a month to complete.
A going-private transaction of a listed company would typically be carried out in a two-step acquisition, comprising a first-step tender offer and a subsequent squeeze-out transaction. See 7.6 Acquiring Less Than 100% for details of the squeeze-out transaction.
A one-step cash merger is not typical, as it would trigger revaluation of the transferred assets for tax purposes, and taxable income will be recognised on the difference between book value and fair value. In general, deal terms would be more competitive in an auction sale and there would be fewer representations and warranties made by the seller.
A private equity fund would typically form an acquisition entity, which is usually a corporation (kabushiki kaisha). As a general matter, a limited liability company (godo kaisha) could be used, but that is not usually an option because there is a legal hurdle for a limited liability company to enter into a commitment line agreement with banks to secure working capital.
Generally speaking, it is not common for a private equity fund to be a party to any acquisition or sale documentation itself, or to provide a separate guarantee.
A private equity buyer would fund its acquisition entity with its own capital and with loans from banks, sometimes accompanied by mezzanine investments in the form of subordinated loans, preferred shares or convertible bonds. A private equity fund would typically acquire a controlling stake in the target, and the senior lenders will take security over material company assets.
In a tender offer, the acquisition entity will be required to provide evidence of its financing, both equity and debt, and must submit equity and debt commitment letters to the regulator, which will be publicly disclosed together with the registration statement.
Club deals are not frequently seen in Japan, partly because the deal size may not be as large as in the United States or some other jurisdictions. In a transaction with a large deal value, a consortium may be formed, as was the case in the acquisition of Toshiba Memory by a consortium formed by Bain Capital and strategic investors (where the aggregate value of the equity and debt investments was approximately JPY2 trillion).
In Japan, both fixed price arrangements and completion account mechanisms with respect to consideration structures are commonly used in private equity transactions, while locked box mechanisms are rare. Earn-outs are not frequently seen, but are sometimes used in the acquisition of pharmaceutical and startup companies to bridge a valuation gap between the seller and the buyer resulting from the inherent uncertainty regarding the target’s success.
Fixed price arrangements are common in relatively small transactions, or in transactions where the interim period between the signing and the closing is expected to be relatively short. In such cases, parties may want to minimise the administrative burden and expense of post-closing adjustments, and buyers tend to rely on interim covenants (covering conduct of business prior to closing) and representations and warranties (such as no material adverse effect after the latest financial statements date).
In transactions where there are completion account mechanisms, the purchase price is usually adjusted based on net indebtedness and net working capital. In Japan, it is not common for private equity sellers to provide specific protections in relation to consideration mechanisms (such as adjustment escrows), and the terms relating to consideration mechanisms usually do not differ much from those with a corporate seller.
Private equity buyers cannot usually provide a guarantee to secure the obligations of the acquiring entity. To deal with their concerns regarding closing uncertainties in relation to financing, sellers often ask the buyer to submit binding debt commitment letters from banks prior to the execution of transaction documents (especially in an auction process). Equity commitment letters are less common but – specifically for going-private transactions, where tender offers are regulated under the Financial Instrument and Exchange Act – a private equity buyer that is the tender offeror will be required to submit and publicly disclose equity commitment letters from its fund entities and debt commitment letters from its banks to show that it has secured sufficient funds to complete settlement.
As discussed in 6.1 Types of Consideration Mechanisms, locked-box mechanisms are rare in Japan. There are a number of transactions where the purchase price is agreed as a fixed amount and is not subject to any closing adjustment. However, in such transactions, there are no mechanisms for leakage indemnification or interest accrual on the purchase price; the protections for the buyer are typically the seller’s interim covenants to conduct the target’s business in the ordinary course and not to distribute dividends, enter into transactions with the seller and its affiliates, or enter into other specified transactions.
It is quite typical to have a dispute resolution mechanism in place for completion accounts consideration structures. A typical dispute resolution mechanism would include the following:
The selection of such third party is often agreed in the transaction agreement beforehand, or the parties can agree to each select an independent firm and use the average figure of both firms’ results.
Closing conditions are usually heavily negotiated between the seller and the buyer, and it is difficult to generalise what is “market” because the outcome will largely depend on the specifics of the transaction.
In most cases, private equity sellers emphasise deal certainty and will therefore resist any closing conditions that are not within the seller's control, except for regulatory approvals, which are in most cases provided as a closing condition. Non-controllable conditions include the buyer’s financing, third party consents, the absence of material adverse changes, and the retention of key personnel.
It is generally difficult for a private equity buyer to include financing as a closing condition, especially in an auction process. Other closing conditions do not generally differ much from the conditions provided for in transactions by a corporate buyer.
If the transaction involves a tender offer, conditions are kept to the minimum due to the rather stringent restrictions on withdrawing a tender offer, as further discussed in 7.5 Conditions in Takeovers.
"Hell or high water” undertakings are not common in Japan, regardless of whether the transaction involves a private equity fund as buyer or not. Sellers would usually mitigate clearance risk through a simpler covenant obliging the buyer to use its best or reasonable efforts to obtain the clearance.
Break fees payable by the seller are not common in private equity transactions without tender offers (see 7.5 Conditions in Takeovers for transactions that involve tender offers); fiduciary-out provisions are also not common. Reverse break fees payable by the buyer are also not common, but are used in some transactions where the seller is particularly concerned about the deal certainty.
There are no specific legal limits on break fees or reverse break fees, but they are usually structured as liquidated damages that would restrict the seller from pursuing additional damages claims against the buyer. Structuring them as a penalty (which does not preclude a separate damages claim) is also possible, but such intention must be expressly provided in the transaction agreement.
In general, termination events provided in the transaction documents for private equity sellers or buyers do not differ significantly from those for corporate sellers or buyers.
Typical termination events include:
Typical methods to allocate risk between the buyer and the seller in Japan do not differ substantially from general practices in other jurisdictions. Risks are allocated through representations and warranties, pre- and post-closing covenants, closing conditions, indemnification, and post-closing adjustments of the purchase price. Even when the seller of the target is a private equity fund, the seller’s representations and warranties would usually include representations and warranties regarding the target’s business, although the scope of such representations and warranties would be more limited compared to those that would be given by sellers that are not private equity funds.
Private equity sellers tend to avoid any post-closing exposures, and to limit post-closing covenants and indemnification terms. Limitations on indemnification include short survival periods for representations and warranties (sometimes such survivals are less than a year after the closing) and limitations such as de minimis exclusions, deductibles or baskets, and caps on indemnity. Cap amounts negotiated by private equity sellers are often lower than those negotiated by corporate sellers.
Even when the seller of the target is a private equity fund, the seller’s representations and warranties would usually include representations and warranties regarding the target’s business, although the scope of such representations and warranties would be more limited compared to those that would be given by sellers that are not private equity funds.
Also, representations and warranties given by private equity sellers are often qualified by materiality (which may be simple materiality or “material adverse effect”) and seller’s knowledge (actual or constructive). A private equity seller would negotiate anti-sandbagging provisions. Although there are a limited number of court precedents, it is generally understood that the courts could deny indemnification claims with respect to breaches of warranties known to the buyer at the time of execution of the transaction document if the transaction document is silent about sandbagging.
Exceptions to the representations and warranties are typically carved out by disclosure schedules, and full disclosure of the data room against the representations is less common in Japanese transactions. Limitations on indemnification include short survival periods for representations and warranties (sometimes such period is less than a year after the closing) and limitations such as de minimis exclusions, deductibles or baskets, and caps on indemnity. Cap amounts negotiated by private equity sellers are often lower than those negotiated by corporate sellers.
The management team seldom provides separate representations and warranties to a buyer, unless the management team itself is a seller in the transaction.
While private equity sellers accept indemnification to a certain extent, a seller would negotiate to limit its exposure as much as possible, as explained in 6.8 Allocation of Risk and 6.9 Warranty Protection. There are cases where private equity funds agree to set up an indemnity escrow as buyer’s sole recourse, although such practice is still relatively rare.
While W&I insurance has been used by Japanese companies in cross-border M&As, it has not been widely used in domestic M&As, partly because there was no insurance company that was able to provide the insurance based on a Japanese language due diligence report and transaction documents. However, insurance companies have recently started to actively provide W&I insurance in Japan based on Japanese language documents. There has been an increasing opportunity for providers of this insurance in connection with the increasing number of small- to mid-cap M&As conducted for the purpose of “business succession”.
In these transactions, individual sellers tend to prefer little to no recourse surviving the closing, and buyers are seeking alternative protection to accommodate the sellers’ request to limit the recourse as well as to mitigate the credit risk of individual sellers. As a result, W&I insurance is expected to become more common even in domestic M&As.
Breaches of representations and warranties, such as inaccurate financial statements, is often negotiated and disputed between the seller and the buyer following the closing. However, the parties tend to resolve such disputes outside court.
For a going-private transaction, it is not uncommon to see appraisal rights litigation initiated by dissenting shareholders who have been squeezed out.
Going-private transactions have been quite common in the Japanese M&A market. Management buyouts sponsored by private equity funds were very popular in the late 2000s and peaked in 2011. Management buyouts are not as frequent today, but going-private transactions continue to take place quite often.
Recent going-private transactions sponsored by private equity funds include KKR’s acquisition of Calsonic Kansei in 2016, and of Hitachi Koki and Hitachi Kokusai Electric in 2017; Bain Capital’s acquisition of ADK Holdings in 2017; and MBK Partners’ acquisition of Kuroda Electric in 2017 and of Accordia Golf in 2016.
The Financial Instruments and Exchange Act imposes a reporting requirement on holders of more than 5% of the shares of a listed Japanese company. In calculating the shareholding ratio, the number of shares held by certain affiliated parties and other shareholders acting in concert (with respect to decisions on the acquisition or disposition of the shares or the exercise of the voting rights) will be aggregated. The reporting must be made to the relevant local finance bureau (zaimu-kyoku) within five business days after the 5% threshold is exceeded. Following the initial reporting, the shareholder must file an amendment whenever there is an increase or decrease in its shareholding ratio by 1% or more, or a change in the name, address or other material information in the previous reporting.
The Financial Instruments and Exchange Act (FIEA) sets forth mandatory tender offer requirements that apply to the acquisition of shares of listed companies (and non-listed reporting companies, which are rare). The rules are fairly complex, but the most important of the various requirements is a so-called “one third rule”, which requires a buyer intending to acquire shares of a listed company to conduct a tender offer if they intend to purchase shares off-market and acquire more than one third of the total voting rights of the listed company as a result of such purchase.
It should be noted that the one third threshold is tested against the voting rights after the acquisition, and even an acquisition by a buyer not holding any voting right before the acquisition could be subject to the requirement; while the requirement will not generally apply to an on-market purchase of shares, it will apply to off-floor trading, which does not provide general market participants with an opportunity to be a party to the trading. The voting rights will be calculated in accordance with the detailed rules set forth in the FIEA, which include aggregation of the voting rights held by certain affiliated parties and other shareholders acting in concert (with respect to decisions on the acquisition or disposition of the shares or the exercise of the voting rights).
In almost all tender offers for Japanese targets, consideration has been cash only, and stock or mixed consideration has not been used, mainly because the Japanese tax law did not grant a tax deferral on capital gains upon the sale of stock for stock or mixed consideration, which made dispersed shareholders of a listed company face an immediate need for cash to pay taxes, and because the acquirer was subject to prohibitively burdensome requirements under the Companies Act, including an investigation by a court-appointed inspector into the value of the target’s shares prior to the issuance of the acquirer’s shares, and an obligation on the acquirer to indemnify the target’s shareholders if it later turns out that the value of the target’s shares they received was significantly less than the value on which the issuance of the acquirer’s shares was based.
However, as discussed in 2 Legal Developments, there have been – and will be – some legal and tax changes to facilitate stock-for-stock acquisitions by Japanese companies, and an exchange offer may finally come into play following such changes.
Offer conditions are strictly regulated, with the limited list of permitted conditions being set out in the Financial Instruments and Exchange Act, and including the occurrence of the following:
Financing cannot be an offer condition, and the offeror must submit equity and debt commitment letters to the regulator as evidence of financing, which will be publicly disclosed together with the registration statement.
In order to secure a successful completion of the tender offer, an offeror often enters into an agreement with the target or the principal shareholders pursuant to which the offeror agrees to launch the tender offer in accordance with the agreed terms, and, in exchange, the target agrees to support – or the principal shareholders agree to tender their shares to – the tender offer so long as it is conducted in accordance with the agreed terms. In each case, such agreement must be publicly disclosed in the registration statement. The target board would often negotiate a fiduciary-out clause in such agreement, and the offeror would negotiate a break fee in response.
If an offeror wishes to acquire only a certain percentage of the shares of a listed company, it can generally set a cap for the acquisition in its tender offer. However, if the offeror will obtain two thirds or more of the total voting rights as a result of the tender offer, it cannot set any cap on its offer and must make an offer to purchase all the tendered shares.
If an offeror obtains 90% or more of the total voting rights of a listed company, it can squeeze-out the minority shareholders by exercising a statutory call option available under the Companies Act. This requires approval from the board of the target (which can be controlled by the 90% shareholder), but not from the shareholders. Dissenting shareholders can exercise appraisal rights, and can seek an injunction in limited circumstances (eg, when the exercise of the call option is in breach of law or when the call price is grossly improper).
If an offeror does not obtain 90% of the total voting rights, but secures two thirds, then it can still squeeze-out the minority shareholders by alternative methods available under the Companies Act (all of which would require a two thirds super majority approval of shareholders). Such alternatives include a short-form cash merger, but a reverse stock split (kabushiki heigou) is the option predominantly used. The reverse stock split would be structured so that, following its completion, shareholders of the target other than the offeror would hold only fractional shares and would be subsequently cashed out. Dissenting shareholders can exercise appraisal rights, and seek an injunction if the reverse stock split is completed in breach of law or the articles of incorporation of the target, and the shareholders could be adversely affected.
Due to corporate governance concerns, it would be difficult for the target to grant a shareholder additional governance rights disproportionate to its shareholding. As such, it is typically not possible to pursue a tactic to obtain only a minority position or limited number of shares of a listed company through a tender offer and concurrently negotiate additional governance rights.
If the target has a principal shareholder, it is customary for an offeror to enter into a tender offer agreement with such principal shareholder at the same time as the announcement of the tender offer. In a tender offer agreement, the offeror agrees to launch the tender offer in accordance with the agreed terms, and, in exchange, the principal shareholder(s) agrees to tender its shares to the tender offer so long as it is conducted in accordance with the agreed terms. The tender offer agreement would usually include certain conditions to tender and often a set of representations and warranties and indemnification provisions. In addition to such conditions to tender, the principal shareholder would sometimes negotiate an “out” for the tender obligation in case a better offer is made by a competing bidder.
There has never been any legal prohibition on hostile tender offers, but they have been very rare in Japan.
However, there has been a notable change in recent years. In March 2019, ITOCHU Corporation (a Japanese trading house) successfully completed a hostile tender offer for the shares of sportswear maker Descente. Further, in July 2019, HIS (a travel agency) launched a hostile tender offer for the shares of real estate developer Unizo, which subsequently induced competing offers from Fortress and Blackstone, and also attracted Elliott who increased its holding in Unizo. In the end, Lone Star Funds won the bidding war by accepting the request from Unizo that the employees of Unizo would hold substantial equity stake (73%) in the company following the tender offer.
The perception of a hostile transaction in Japan is changing, and we expect this tendency to continue.
While cash compensation is a common form of incentivisation for the management team in private equity transactions, there are cases where equity incentives are provided to the management team. The level of equity ownership in such cases depends on various circumstances, but typically falls within a range of 5% to 20%.
Equity-based incentive schemes vary in structure, but are typically structured as a rollover of existing equity into new equity or a grant of stock options either in the post-buyout target company or its holding company. Typically, the management will subscribe for ordinary equity, and preferred instruments are not often used in the management equity structures.
In Japan, no specific tax rules apply to management rollovers (eg, tax-free rollovers) or parachute payments (eg, prohibition of deduction for such payments and imposition of excise taxes on such payments). As to stock options granted to individuals, “qualified stock options” (ie, certain qualified options that meet specific criteria) will be subject to tax at capital gains rates (about 20%) upon the sale of the underlying shares. In contrast, holders of non-qualified stock options are first taxed based on the economic gain reflected in the difference in the value of the shares underlying such options compared to the exercise price of the options at the time of exercise of the options; such gain is taxed as salary income (which would usually subject such holder to a higher progressive tax rate compared to tax at the capital gains rates). Such holders are taxed a second time at the time of sale of the shares underlying such options; the capital gains rate tax will apply on any increase in the value of the shares since the exercise of the options.
Typical leaver provisions for management shareholders would include good leaver provisions whereby the management shareholder is entitled to retain equity (eg, if the employment is terminated by the private equity fund without cause), and bad leaver provisions whereby the management shareholder loses its equity in the target company (eg, if the employment is terminated for cause or the management’s breach of the employment agreement). In typical cases where the bad leaver provisions are triggered, shares are compulsorily transferred to the private equity shareholder at market price or the original issue price, and share options are waived and become no longer exercisable.
Vesting is usually tied to time or performance. With respect to time vesting, vesting is generally linear and the typical vesting period is around five years. With respect to performance-based vesting, equity will vest annually if a certain target is met (eg, EBITDA targets) or upon exit (ie, vesting will not occur before the exit and the amount of equity to vest is tied to the sale price).
Management shareholders are usually subject to restrictive covenants (non-compete, non-solicitation and sometimes non-disparagement undertakings) under the shareholders’ agreements or executive services agreements with the private equity shareholder. Even where there is no express undertaking in such agreements, management shareholders who are directors will be subject to statutory non-compete obligations under the Companies Act of Japan, and will be prohibited from engaging in transactions that belong to or are within the scope of the business of the target company, unless the target board approves such transactions. Whether any post-employment non-compete and non-solicitation obligations apply to such management shareholders will, in principle, depend on whether there is any express agreement binding such management shareholders.
Japanese courts will typically enforce post-employment non-compete obligations that extend for a period of one to two years, and in some instances even longer if there are rational reasons to uphold long-term non-compete obligations. Non-compete obligations that are determined to be overly broad and restrictive by the court will be rendered unenforceable. In determining the enforceability of particular non-compete obligations, the courts typically consider and weigh factors such as the position and responsibility of the former managers, whether the former managers were adequately compensated, and the scope and breadth of the non-compete obligations.
In general, shareholders’ agreements entered into between management shareholders and a private equity shareholder do not afford much minority protection for management shareholders. Normally, minority protections such as anti-dilution provisions, veto rights, director appointment rights or the right to control or influence the exit of the private equity shareholder are not provided for, unless the management shareholder is also the seller/founder of the company, in which case the founder management shareholder may have some veto rights and board appointment rights.
A private equity shareholder would typically hold a majority of the voting rights. Accordingly, the private equity shareholder would have veto rights over certain fundamental corporate actions and events relating to the portfolio company that are subject to shareholder approvals, including amendments of articles of incorporation and mergers and other corporate reorganisations. The private equity shareholder would also be able to appoint and remove directors as a majority shareholder.
Furthermore, a private equity shareholder will enter into management services agreements with the key management members, and may control the individual directors through such agreements. The management services agreement would set forth the roles and responsibilities of the key management members, compensation, and certain reporting requirements, among other matters.
A private equity shareholder would also typically nominate one or more directors to serve in each portfolio company to facilitate its oversight of the portfolio company’s business operations. Such directors would attend the board meetings at which material business issues and agenda items would be discussed and approved.
Generally, a private equity fund majority shareholder will not be held liable for the actions of its portfolio company. However, in instances where it is unreasonable to treat the portfolio company as an independent juridical person, Japanese courts may apply the doctrine of piercing the corporate veil and deny the independent legal personality of the portfolio company, holding the shareholders liable for the liabilities of the portfolio company. According to judicial precedents, the doctrine requires that the legal personality either is abused to avoid the application of laws or has no substance.
While it depends on the fund, it is not that common for Japanese private equity funds to impose their compliance policies on their portfolio companies. Global private equity funds are more likely to impose such policies on portfolio companies, but some private equity funds would just first check whether the portfolio company has adequate compliance functions in place; if the results are satisfactory, funds would not go so far as to impose their compliance policies.
The typical holding period for a private equity fund is around five years. The most common form of private equity exit is through M&A, but IPOs remain an attractive option for private equity exits because a Tokyo Stock Exchange listing is available even to companies with relatively small market capitalisation (eg, the requirement for the market capitalisation of listed shares on the Mothers market is JPY1 billion). An M&A/IPO dual-track process (ie, running an M&A sale track alongside an IPO track) is sometimes seen in Japan, but is not as popular as in other jurisdictions. Reinvestment by private equity sellers upon exit is not common practice.
Drag-along arrangements are typical in shareholders’ agreements between private equity shareholders and management shareholders. While it depends on negotiations, drag-along rights of private equity funds can also be found in shareholders’ agreements between private equity and institutional co-investors. Key terms of the drag rights are not substantially different from those agreed in non-private equity transactions. The typical drag threshold would be the sale of a controlling stake in the portfolio company.
In some cases, but not always, drag-along rights of private equity shareholders are coupled with the management shareholders’ tag-along rights, and such tag-along rights may be exercised upon the sale of all or a controlling stake by the private equity fund.
Under the Tokyo Stock Exchange’s listing rules, shareholders who were allotted shares within a one-year period prior to the date of the IPO are subject to a lock-up period of six months after the IPO (or one year after such allotment). In addition, underwriters will require major shareholders of the company to execute lock-up letters that prohibit disposal of shares for a certain period after the date of the IPO (most commonly 180 days). After these lock-up periods, shareholders are allowed to freely sell the shares in the market.
In Japan, controlling shareholders and target companies will not enter into relationship agreements, but listing rules and disclosure requirements are designed to provide governance over the relationship between the controlling shareholder and the target company.
Investment Deal Trends
The private equity market in 2019 was explosive. The reported number of private equity deals for the year set a new record, however, the total value of all deals in 2018 remains the highest as 2019 did not contain any mega deals like those that occurred in 2018, such as the acquisition of Toshiba Memory Corporation by Bain Capital and its co-investors (USD21 billion) and Kohlberg Kravis Roberts’ purchase of Hitachi Kokusai Electric Inc (USD1.7 billion). These transactions greatly increased the total value of transactions in 2018.
That is not to say that 2019 was without any sizable deals. Large deals in 2019 included:
The number of deals continues to rise due to two increasing trends: first, active investments through carve-out deals where larger companies are divesting their non-core businesses and second, business succession deals involving small to medium-sized companies and family-owned organizations.
The secondary market and P2P transactions
Particular to 2019 was the increased activity in the secondary market where one private equity firm sells its portfolio company(ies) to another. This may develop into a third increasing trend.
On the other hand, a decreasing trend for the year was the fall in numbers of public-to-private (P2P) transactions (only five cases in 2019). This was caused partly by the recent high stock price of listed companies. Another factor to consider is that in 2019, the Practical Guidelines Concerning Group Governance System (“Group Guidelines”) were published by the Ministry of Economy, Trade and Industry of Japan (METI).
The Group Guidelines state that due to the risk of potential conflicts of interest between a listed company and its controlling shareholder if the controlling shareholder is also a listed company, unless the listed company can properly fulfil its accountability in relation to such relationship, the listed company with a controlling shareholder who is also a listed company should terminate such relationship (ie, arrange for the controlling shareholder to not be a listed company by divesture of subsidiary).
While the Group Guidelines are merely guidelines rather than laws, given the growing pressure from the market against listed companies having a controlling listed parent company, which the Group Guidelines now clearly evidence as also being the Japanese government’s position, the near future may see more public-to-private transactions led by private equity firms involving publicly listed controlling shareholders to help them to have an appropriate corporate group governance. At the time of writing, there are more than 600 listed companies with a controlling shareholder, including those for which the controlling shareholder is a listed company.
Looking forward in 2020
Continuing looking forward, the landscape for investments by private equity firms is expected to be very different in 2020 and beyond due to the COVID-19 situation. Considering the economic downturn caused by the COVID-19 virus, it is foreseeable that there will be more business turnaround deals, some of which may be P2P transactions, due to a slump in the stock value of companies engaged in businesses particularly vulnerable to the disruptions caused by the COVID-19 virus such as the manufacturing, accommodation, travel and transportation, retail and restaurant industries.
In recent times, there have been approximately 40 to 50 deals per year in which a private equity fund or investor exits their investment (exit deals). Among the private equity investment exits, most of them are trade sales and secondary buy-outs. There were only a few IPO exits in 2019. As noted above, in 2019 there were more secondary buy-outs compared to previous years. Normally, this trend would be expected to continue, however, the COVID-19 situation makes it very difficult to predict how the exit trends will develop in 2020. With that caveat, the general exit trends seem more likely than not to continue in 2020, where trade sales and secondary buy-outs are expected to constitute the vast majority of exit deals.
Impact of COVID-19 on Private Equity
How the COVID-19 crisis will affect the private equity industry in Japan in coming months remains unpredictable.
On 7 April 2020, the Government of Japan declared a state of emergency in relation to COVID-19. Many transactions were suspended or cancelled as a result, all around the same time, and, according to the RECOF database, Japanese M&A transaction activity in April and May of 2020 dropped approximately 30% compared to the same period in 2019.
However, after the lifting of the Declaration of a State of Emergency on 25 May 2020, it appears that M&A activity has restarted and there are some positive signs that deal making could rebound later in 2020. According to the RECOF database, the number of transactions published in June of 2020 revealed a 20% growth compared to June of 2019. Many practitioners have commented that Japanese companies have been forced to review their strategy and business model in the wake of the COVID-19 outbreak, and it is anticipated that the sale of non-core businesses will be accelerated. In this case, private equity firms will have a key role to play as the potential buyers in these deals.
Private equity funds
As for private equity funds, COVID-19’s impact on their new investments should not be universally catastrophic, but a heavy impact can be expected, at least in the short term, for their portfolio companies in certain industries such as the accommodation, travel and transportation, retail, and restaurant industries. In response to the hardships caused by the COVID-19 situation, the Japanese government has provided some programs to support such companies who suffered from the downturn in consumption. The COVID-19 induced downturn also affected negotiations with LBO lenders which tended to become more difficult.
Some of the private equity firms were forced to provide additional funds to obtain waivers of financial covenants under their LBO loans or to obtain additional financing from LBO lenders or other financial institutions. Given that there are still many portfolio companies that private equity firms have invested into but not yet exited and that these private equity investments tend to be of a higher level of risk, it would not be surprising if there was an uptake in corporate reorganization or bankruptcy cases.
Recent Amendments to Foreign Exchange and Foreign Trade Act
Recent amendments to the Foreign Exchange and Foreign Trade Act (FEFTA) has tightened the rules applicable to foreign direct investments to align Japan with the global trend towards strengthening regulation of foreign investors.
Under the FEFTA, when foreign investors, including foreign-based private equity firms, seek to perform certain acts, such as the acquisition of shares, in relation to Japanese companies engaged in designated industries, the foreign-based private equity firm must file an advance notification to the relevant Ministry(ies) and wait for the 30 day processing period (which is often shortened to two weeks but may be extended up to five months in very exceptional cases) to elapse before performing such act.
An amendment to the FEFTA which took effect on and from 1 August 2019 expanded the scope of the designated industries by adding certain sectors in the information and communication technology and software development industries. Further, a subsequent amendment added certain types of actions that trigger an obligation for foreign-based private equity firms to submit prior notifications to the specified government authority, such as the foreign-based private equity firm making an affirmative vote to elect a foreign investor (including a foreign-based private equity firm) or its affiliated person as an officer of a company in the designated industry or proposing the transfer or abolishment of the business in a designated industry.
Private equity firms doing deals in Japan should carefully examine whether a company in which it contemplates investing is engaged in any of the designated industries bearing in mind that such examination may require some time as the classifications of the designated industries is not always clear. As mentioned, the statutory waiting period is in general 30 days, but in practice there is some uncertainty as to whether allowing 30 days for the processing period is sufficient.
In some cases, conditions are attached in relation to a contemplated foreign investment by the specified Ministry, and in such cases, a revised notification may be required to be filed with a declaration that the foreign investor will comply with such conditions. In these cases, the 30 days waiting period starts again from the date of filing of the revised notification.
Fair M&A Guidelines
On 28 June 2019, METI published a new Guideline, the “Fair M&A Guidelines: Enhancing Corporate Value and Securing Shareholders’ Interests”, completely revising and updating the MBO guidelines issued more than a decade ago.
This new guideline focuses on MBO and the acquisition of controlled companies by controlling shareholders, where conflicts of interest and information asymmetries between the buyer and minority shareholders typically exist. The Guideline stipulates a variety of measures that should be taken by the target company and the acquirer to ensure the fairness in these types of transactions including:
Although the Guideline states that which, and to what extent, fairness ensuring measures should be taken on a case-by-case basis, it should be noted that the Guideline emphasises the importance of the special committee to ensure the fairness of the transaction.
The purpose of this Guideline is to encourage best practice and it is not legally binding, but the Guideline has influenced the practice of MBO since its publication. In particular, there is a trend for the special committee to become more involved more deeply and actively at an earlier stage of the MBO transaction than before. In Japan, MBOs are typically funded by private equity funds as the equity providing sponsor, and thus private equity funds should closely monitor how the practice in this area develops.
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