JAPAN Law and Practice Contributed by: Hajime Tanahashi, Takayuki Kihira, Kenichi Sekiguchi and Akira Matsushita, Mori Hamada
7. Disclosure 7.1 Making a Bid Public
is required if there are at least 50 shareholders of a target company and the target company is a reporting company under the FIEA, and no security registration statement has already been filed in relation to the same class of shares as the acquirer’s shares to be issued upon such a statutory business combination or a share deliv - ery mechanism. For example, if a foreign purchaser acquires a Japanese listed company by way of a triangu - lar merger and issues the shares of the foreign purchaser as consideration of the merger, the foreign purchaser will be required to file a secu - rity registration statement unless it has already become a reporting company in Japan under the FIEA. 7.3 Producing Financial Statements For a tender offer, the bidder must disclose in the tender offer registration statement its finan - cial statements, prepared in accordance with Japanese Generally Accepted Accounting Prin - ciples (GAAP) for the latest fiscal year, together with any quarterly or half-year financial state - ment after the date of the most recent full-year financial statement. If the bidder is a foreign entity, it may provide financial statements pre - pared in accordance with the generally accepted accounting principles of its home country, with explanatory notes as necessary, to explain cer - tain differences from Japanese GAAP, in lieu of Japanese GAAP financial statements. When a business combination requires the filing of a security registration statement, the offeror must disclose, in the security registration state - ment, its financial statements for the last two fiscal years, together with any quarterly updates, prepared in accordance with Japanese GAAP. However, a foreign offeror may produce finan - cial statements prepared in accordance with
If an acquisition is made by a tender offer to the shareholders of a listed company, a bidder must publicly announce the bid at the beginning of the tender offer by: • a press release; • public notice of the tender offer; and • a tender offer registration statement. Bullet points two and three are required pursuant to the FIEA and are to be made or filed on the tender offer commencement date. As the press release is only required by the stock exchange regulations, if the bidder is not a listed compa - ny, the bidder is not required to issue a press release, although the target listed company is required to issue a press release immediately after it has formed an opinion (regarding its endorsement or not) of the tender offer. If a bidder’s press release is required, it is usually made one business day before the tender offer commencement date (simultaneously with the target company’s press release unless the bid is unsolicited). However, in certain exceptional situations, a bid is publicly announced by the bidder and the target company in advance of the commencement of the tender offer, such as when earlier public disclosure would be required to obtain merger clearance in certain jurisdic - tions. 7.2 Type of Disclosure Required When an acquisition is made by a statutory business combination (ie, merger, corporate split, share exchange or share transfer) or share delivery mechanism, whereby an acquirer’s shares are issued as consideration, the filing of a security registration statement by the acquirer
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