略式組織再編以外の組織再編の差止 : 著しく不当な対価によるキャッシュ・アウトの差止の手法

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  • リャクシキ ソシキ サイヘン イガイ ノ ソシキ サイヘン ノ サシトメ イチジルシク フトウ ナ タイカ ニ ヨル キャッシュアウト ノ サシトメ ノ シュホウ
  • Injunction Against Cash-Out Mergers at Unreasonably Low Share Prices

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type:Departmental Bulletin Paper

On September 7, 2012, the Japanese Ministry of Justice’s Legislative Council Subcommittee on the Companies Act put forth an “Outline regarding the revision of corporate legislation.”The outline states the policy underlying theproposed revision of the Corporate Act as follows:“In light of the important social and economic roles that companies play, and from the understanding that companies need to gain further trust from a wide range of stakeholders, it is necessary to take a close look at issues such as corporate governance and rules regardingparent-subsidiary relationships.” Specifically,given that the interests of minority shareholdersmay not be protected in a sufficient manner under the current legislation when they are cashed out in cases of mergers or acquisitions, the question of how corporate reorganization other than short-form reorganization can be prevented was high on the agenda.Cashing out of minority shareholders typicallyoccurs when a publicly traded company becomes a private concern as a result of such processes as management buy-out (MBO). Put differently, it occurs when the acquirer, which has launched a takeover bid and taken majority control of the acquired company, either 1) pays cash directly to minority shareholders, 2) carries out an exchange of stock resulting in the minority shareholders being left with odd-lot shares, or 3) revises its articles of incorporation enabling itself to issue class shares and proceeds to issue class shares subject to wholly call. It has been pointed out, however, that there is a gap between the original aim of the legislation and the ways that actual cases of cash-out mergers are carried out due to the differences in tax treatments among such instances of mergers and acquisitions.We can categorize the issues surrounding thecashing out of minority shareholders upon corporate reorganization into two patterns. One isthat, regardless of whether the amount of cashreceived is appropriate or not, minority shareholders are deprived of their holdings against their will. The other is that minority shareholders can be pushed out in exchange for an inadequate amount of cash. Given such classifications, there are two possible approaches to address these issues: 1) to think of a way for minority shareholders to remain shareholders of the surviving company, protecting their right to continue their investment in the ongoing operations, and 2) to ensure that minorityshareholders are given a fair amount of cash ifthey are to be cashed out. In the meantime, regarding corporate reorganization itself, whileminority shareholders can resort to filing forthe confirmation of nullity of a corporate organization(Companies Act Article 828) aftersuch reorganization has taken effect, there is nowritten pre-reorganization legal protection for minority shareholders except for filing for thesuspension of short-form corporate reorganization(Companies Act Article 784-2 and Article 796-2). Under such circumstances, the outline regarding the revision of corporate legislature formally introduced a scheme where corporate reorganization other than short-form reorganization can be prevented. In this study, I will take a brief look at the changes in and the debates about the concepts behind the legalrulings regarding cash-out mergers in the Stateof Delaware, U.S.A., where there is already fairaccumulation of discussions about corporatereorganization. By doing so, the study aims toobtain a certain level of insight into the prevention scheme of corporate reorganization to be introduced in the revised Companies Act and how it will be put into practice.

identifier:彦根論叢, 第397号, pp. 18-37

identifier:The Hikone Ronso, No.397, pp. 18-37

収録刊行物

  • 彦根論叢

    彦根論叢 第397号 18-37, 2013-09

    滋賀大学経済学会

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