Attorney Ushijima (牛島) and Hosomizu (細水) discussed the fairness of takeover defenses, including differences in the conditions for exercising stock acquisition rights between ordinary shareholders and activists, the substantive nature of compensation, and the possibility of constitutional violations of property rights.
Takeover defenses are introduced with shareholder approval, but concerns have been raised about implementing them in ways that exclude specific shareholders. One case discussed involved different conditions for exercising stock acquisition rights continuing to apply to activists even after the rights had been granted.
While ordinary shareholders can exercise their rights relatively easily, activists may be classified as ineligible and subject to restrictions on exercise. It has also been pointed out that monetary support provided as compensation is not substantive. In some cases, the conditions may include a buyout ten years in the future.
The view was expressed that a shareholder’s rights should not be taken away by another shareholder, and that even where a majority is secured through a tender offer and shareholders are forcibly excluded, payment of a fair valuation should be a prerequisite.
Questions were also shared about the unclear purpose of listed companies introducing takeover defenses. The discussion is expected to continue regarding their practical operation and legal consistency.