JAPAN Trends and Developments Contributed by: Yo Ota and Bonso Morimoto, Nishimura & Asahi
medium- to long-term corporate value. Through this unsolicited TOB, Mr Maki ultimately acquired over 20% of BASE’s stakes on 14 August 2025. After completing the TOB, and based on a press release issued by BASE on August 29th, BASE entered into a non-disclosure agreement with Mr Maki. The agreement included a standstill provision prohibiting him from acquiring additional shares of BASE for six months, in order to facilitate constructive dialogue between the parties with the goal of enhancing BASE’s corporate value and shareholders’ common interests. It is rare for a target company to enter into a settle- ment agreement with an unsolicited acquirer, and the existence of such an agreement was made public in the Japanese market. Accordingly, it is worth paying close attention to further developments in this case. Competing Takeover Bids Competing takeover bid activity has also been seen in the Japanese market. For example, the acquisition vehicle incorporated by Kohlberg Kravis Roberts & Co LP (KKR) on 8 April 2024 announced its plan to launch a solicited TOB to acquire all of the shares of Fujisoft, Inc; it commenced this TOB on 5 September 2024. Furthermore, the acquisition vehicle incorporated by Bain Capital Private Equity, LP (“Bain”): • first disclosed, on 3 September 2024, a competing acquisition plan to launch a TOB to acquire all of Fujisoft’s shares; and • subsequently announced, on 11 October 2024, its submission of a binding offer for taking Fujisoft pri- vate with a planned tender offer price higher than the TOB price in that of the preceding TOB. In response, on 15 November 2024, KKR announced a plan to launch a second TOB at a price one yen higher than that proposed by Bain. Additionally, KKR announced several acquisition proposals to raise its TOB price in order to maintain price competitiveness. Following the disclosure of KKR’s new acquisition plans, on 17 February 2025, Bain announced that it would withdraw its tender offer, and KKR’s second tender offer was successfully completed on 19 Feb- ruary 2025.
As the above cases illustrate, in the Japanese market, once a solicited acquisition plan is disclosed, the risk of competing takeover bids by unsolicited acquirers has increased significantly. The Court Decision in Nidec v Makino The basic mechanism of Makino’s takeover defence measure was a typical countermeasure under Japa- nese rights plans: the plan allowed the issuing com- pany to dilute the stake of the unsolicited acquirer by issuing new warrants to be automatically converted to new shares to existing shareholders (other than the unsolicited acquirer), thereby enabling them to acquire additional shares. However, Makino’s countermeasure possesses remarkable characteristics that distinguish it from other typical takeover defence measures. This countermeasure was designed solely to secure the time necessary for Makino and its general sharehold- ers to appropriately assess whether the unsolicited acquisition plan or any competing proposals pre- sented by potential acquirers were superior. In other words, under the plan, Makino’s board did not activate the countermeasure on grounds that the unsolicited takeover itself was detrimental to corporate value or to the common interests of the general shareholders of Makino. The Tokyo District Court did not enjoin the activation of the countermeasure and approved the validity of the adopted takeover defence measure, primarily on the ground that securing a reasonable time to explore other competing takeover proposals serves the com- mon interests of the general shareholders. It is also noteworthy that the court stated that, even though the unsolicited acquirer bore the disadvantage of being prevented from completing the takeover as sched- uled, such disadvantage was subordinate to the com- mon interests of the general shareholders in exploring other competing takeover proposals. The Nidec v Makino case was notable as the first judicial decision to address the validity of a takeover defence measure against an unsolicited takeover bid since the Guidelines were made public. Accordingly, this court’s decision may encourage target compa- nies to activate takeover defence measures in order to secure a reasonable period to explore competing takeover proposals. However, the court did not make
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