Introduction of Measures for Large-scale Purchases of NYK Share Certificates for the Purpose of Securing and Enhancing Corporate Value and the Common Interests of Shareholders (Takeover Defense Measures)
March 27, 2008
Nippon Yusen Kabushiki Kaisha (NYK; head office: Chiyoda-ku, Tokyo; president: Koji Miyahara) hereby announces that its Board has determined on March 27, 2008 to adopt measures (the "Plan") for Large-scale Purchases of NYK Shares for the purpose of securing and enhancing corporate value and the common interests of shareholders, on the condition that they are approved by the shareholders at NYK?s 121st ordinary general shareholders? meeting to be held in late June 2008 (the "Ordinary General Shareholders? Meeting").
This summary has been prepared for the purpose of explaining the contents of the Plan in a comprehensible manner. For details on the Plan, please refer to the official text of the "Introduction of Measures for Large-scale Purchases of NYK Share Certificates for the Purpose of Securing and Enhancing Corporate Value and the Common Interests of Shareholders (Takeover Defense Measures)" (PDF 221KB). Please also refer to the flowchart attached in the plan (PDF 28KB).
1. Purpose of Introduction
NYK has determined to adopt the Plan to secure and enhance the corporate value and the common interests of the shareholders of the NYK Group in the event of a Large-scale Purchase of NYK Share Certificates, by ensuring the information and time necessary for the shareholders to decide whether to accept or reject such Large-scale Purchase or for the Board to provide alternative proposals to the shareholders, and by enabling the Board to discuss and negotiate, etc. for the benefit of the shareholders.
2. Outline of the Plan
The procedures set forth in the Plan are as follows;
Applicable Purchases: Purchases, etc. of NYK Share Certificates of 20% or more.
Establishment of Independent Committee: In order to deliberate, in the event of a Large-scale Purchase of NYK Share Certificates, the matters including whether or not to implement the countermeasures, the Board will establish the Independent Committee which is composed of at least three members who will be appointed from among outside directors, outside statutory auditors and knowledgeable persons outside of NYK.
The procedures of the Plan
3. Features of the PlanApplicable Purchases: Purchases, etc. of NYK Share Certificates of 20% or more.
Establishment of Independent Committee: In order to deliberate, in the event of a Large-scale Purchase of NYK Share Certificates, the matters including whether or not to implement the countermeasures, the Board will establish the Independent Committee which is composed of at least three members who will be appointed from among outside directors, outside statutory auditors and knowledgeable persons outside of NYK.
The procedures of the Plan
(1)A Large-scale Purchaser is required to submit to the representative director of NYK a Letter of Intention in advance of commencing a Large-scale Purchase of NYK Share Cerfiticates.
(2)Within 10 business days after receipt of the Letter of Intention, the Board will deliver to the Large-scale Purchaser a list of the Large-scale Purchase Information to be submitted.
(3)The Large-scale Purchaser is required to submit documentation setting forth the Large-scale Purchase Information (the "Explanation of Purchase"). The Board will review the Explanation of Purchase and confirm whether the Large-scale Purchase Information is sufficient for the shareholders? determination, and for the Board and the Independent Committee to form their opinions.
(4)After the confirmation of Explanation of Purchase, the Board will consult with the Independent Committee as to the matters including whether to implement the countermeasures. The Independent Committee will, in principle within the sixty-business-day review period, examine and discuss the matters including whether to implement the countermeasures, and submit to the Board the recommendations on implementation of the countermeasures, non-implementation of countermeasures or any other recommendations. The Board will take such action as described below from (5) to (7) in accordance with the recommendations from the Independent Committee.
(5)If the Independent Committee makes an Implementation Recommendation following a determination that the Large-scale Purchaser is an Abusive Acquirer (green-mailer, etc.), the Board may, giving the utmost respect to such recommendation, implement countermeasures (allotment of stock acquisition rights without consideration, etc.) against the Large-scale Purchaser.
(6)In either of the cases below, the Board may implement the countermeasures, upon convening a general shareholders? meeting to confirm the intentions of the shareholders and obtaining the shareholders? approval regarding the implementation of countermeasures.
(7)If the Independent Committee makes a Non-implementation Recommendation, the Board shall give utmost respect to such recommendation.
(8)If the Large-scale Purchaser does not comply with the procedures provided by the Plan, the Board may, upon obtaining an Implementation Recommendation from the Independent Committee, implement countermeasures.
(2)Within 10 business days after receipt of the Letter of Intention, the Board will deliver to the Large-scale Purchaser a list of the Large-scale Purchase Information to be submitted.
(3)The Large-scale Purchaser is required to submit documentation setting forth the Large-scale Purchase Information (the "Explanation of Purchase"). The Board will review the Explanation of Purchase and confirm whether the Large-scale Purchase Information is sufficient for the shareholders? determination, and for the Board and the Independent Committee to form their opinions.
(4)After the confirmation of Explanation of Purchase, the Board will consult with the Independent Committee as to the matters including whether to implement the countermeasures. The Independent Committee will, in principle within the sixty-business-day review period, examine and discuss the matters including whether to implement the countermeasures, and submit to the Board the recommendations on implementation of the countermeasures, non-implementation of countermeasures or any other recommendations. The Board will take such action as described below from (5) to (7) in accordance with the recommendations from the Independent Committee.
(5)If the Independent Committee makes an Implementation Recommendation following a determination that the Large-scale Purchaser is an Abusive Acquirer (green-mailer, etc.), the Board may, giving the utmost respect to such recommendation, implement countermeasures (allotment of stock acquisition rights without consideration, etc.) against the Large-scale Purchaser.
(6)In either of the cases below, the Board may implement the countermeasures, upon convening a general shareholders? meeting to confirm the intentions of the shareholders and obtaining the shareholders? approval regarding the implementation of countermeasures.
Case1: In case that the Independent Committee determines that the Large-scale Purchaser is an Abusive Acquirer and additionally, the Board determines that it is appropriate to confirm the intentions of the shareholders.
Case2: In case that the Independent Committee determines that the Large-scale Purchase poses a risk of damaging the corporate value or the common interests of the shareholders of the NYK Group.
Case2: In case that the Independent Committee determines that the Large-scale Purchase poses a risk of damaging the corporate value or the common interests of the shareholders of the NYK Group.
(7)If the Independent Committee makes a Non-implementation Recommendation, the Board shall give utmost respect to such recommendation.
(8)If the Large-scale Purchaser does not comply with the procedures provided by the Plan, the Board may, upon obtaining an Implementation Recommendation from the Independent Committee, implement countermeasures.
(1) The Plan satisfies the three principles set forth in the "Guidelines Concerning Takeover Defensive Measures for Securing and Ensuring Corporate Value and the Common Interests of Shareholders" (announced by the Ministry of Economy, Trade and Industry and the Ministry of Justice on May 27, 2005)
(3) In the Plan, the Board will adopt a resolution upon
Essence of the Plan
(which are,
(i) the principle of securing and enhancing corporate value and the common interests of shareholders,
(ii) the principle of prior disclosure and reflection of the intentions of shareholders, and
(iii) the principle of ensuring necessity and proportionality).
(2) The Plan will be adopted on the condition that it is approved by the shareholders. The effective period of the Plan is limited to three years, until the time of the conclusion of the ordinary general shareholders? meeting relating to the business year ending March 2011; provided, however, that the Plan will be abolished at the time a general shareholders? meeting or the Board adopts a resolution to abolish the Plan.
(i) the principle of securing and enhancing corporate value and the common interests of shareholders,
(ii) the principle of prior disclosure and reflection of the intentions of shareholders, and
(iii) the principle of ensuring necessity and proportionality).
(3) In the Plan, the Board will adopt a resolution upon
(i) obtaining a recommendation from the Independent Committee, which is composed of at least three members, independent of NYK?s management, such as outside directors, outside statutory auditors or knowledgeable persons outside of NYK, and
(ii) giving the utmost respect to such recommendations from the Independent Committee.
(ii) giving the utmost respect to such recommendations from the Independent Committee.
Essence of the Plan
| Item | The Plan |
| Type | Advanced warning type |
| Procedure for Introduction | NYK will confirm the intentions of the shareholders regarding the adoption of the Plan at the Ordinary General Shareholders? Meeting scheduled to be held in June this year. |
| Applicable Purchases | Purchases of NYK Share Certificates of 20% or more. |
| Countermeasures | Allotment of stock acquisition rights without consideration and other appropriate methods. |
| Composition of the Board | Independent outside directors are expected to be elected at the Ordinary General Shareholders? Meeting. |
| Term of the Directorship | Planned to be shortened to one year at the Ordinary General Shareholders? Meeting (and NYK has not adopted a staggered board). |
| Composition of the Independent Committee | Planned to be composed of outside directors, outside statutory auditors or knowledgeable persons independent from NYK. |
| Effective Period | Three years following the date of the approval at the Ordinary General Shareholders? Meeting (provided, however, that the Plan will be abolished at the time that a general shareholders? meeting or the Board adopts a resolution to abolish the Plan). |
| Dispatch of proxy notice | NYK has dispatched proxy notices three weeks prior to each of ordinary general shareholders? meetings in the past to give shareholders sufficient time to study the detail. As for the Ordinary General Shareholders? Meeting in June 2008, NYK will dispatch them three weeks in advance of the meeting to enable shareholders to study the agendum regarding the Plan. |
| Confirmation of the Intentions of the Shareholders by Holding a General Shareholders? Meeting | Case 1: In case that the Independent Committee determines that the Large-scale Purchaser is an Abusive Acquirer and additionally, the Board determines that it is appropriate to confirm the intentions of the shareholders. Case 2: In case that the Independent Committee determines that the Large-scale Purchase poses a risk of damaging the corporate value or the common interests of the shareholders. In either of the cases above, the Board will confirm the intentions of shareholders as to whether or not to implement countermeasures at a general shareholders? meeting. |
Please click here to see the news about Appointment of Members of the Indipendent Committee.
The news on this website is as of the date announced and may change without notice.