Introduction
For most companies, an M&A transaction is not a recurring event. The process, however, follows a broadly settled shape: what gets decided at each stage, what goes into the documents, and which corporate approvals must be obtained. Having that map from the outset affects both your negotiating position and the likelihood of disputes later.
M&A and corporate work is a core practice area of this firm. We advise from structure selection through due diligence, drafting and negotiation, and the corporate approvals needed to close.
What we handle
・Structure selection (share transfer, business transfer, company split, merger) ・Legal due diligence, and responding to due diligence conducted by the counterparty ・Drafting, reviewing and negotiating share purchase agreements and business transfer agreements ・Designing representations, warranties and indemnities ・Shareholders' agreements and investment agreements ・Designing the corporate approvals required to close (shareholders' meeting, board) ・Assessing whether a merger filing is required under the Antimonopoly Act ・M&A for business succession
A word on scale. Transactions of the kind that require a large staffed team, such as major public-company combinations, are handled in coordination with other professionals according to the size and nature of the matter. Where this firm can see a matter through on its own is in share transfers, business succession and carve-outs involving small and mid-sized companies and startups.
Points that are commonly overlooked
Problems in M&A more often arise from a skipped procedural step than from the substance of the negotiation. Three recurring examples:
Approval for transfer-restricted shares. Where the articles of incorporation restrict share transfers, a shareholder wishing to transfer shares must request the company to decide whether to approve the acquisition (Companies Act, Article 136). That decision is made by resolution of the shareholders' meeting, or of the board in a company with a board of directors, unless the articles provide otherwise (Companies Act, Article 139, paragraph 1).
Transfer of a material part of a business. A transfer of all or a material part of a business requires shareholder approval by the day before the effective date. Whether a part is "material" turns in the first instance on whether the book value of the assets transferred exceeds one-fifth of the company's total assets; the articles may set a lower ratio (Companies Act, Article 467, paragraph 1, item 2). That resolution is a special resolution (Companies Act, Article 309, paragraph 2, item 11).
Merger filing. Share acquisitions above a certain size require prior notification to the Japan Fair Trade Commission. The threshold is based on domestic turnover: the acquiring group must exceed an amount set by cabinet order within a range not below 20 billion yen, and the target group an amount not below 5 billion yen (Antimonopoly Act, Article 10, paragraph 2). The voting-rights thresholds are set by JFTC rules. Smaller deals frequently fall outside the requirement, but where the buyer is large this should be checked at the outset.
Illustrative matters and how we approach them
The following describe how we would proceed if such a matter were brought to us. They are not records of past engagements.
Example 1 A startup that has received an acquisition approach
The founders have been approached by a corporate buyer and are unsure where to begin.
We first establish what stage the approach represents. An expression of interest and a letter of intent containing price and terms call for different responses. If a non-disclosure agreement is on the table, we look at the scope of disclosure and what happens to the information if talks end.
In parallel, we review the company's own readiness: consistency between the shareholder register and the commercial register, any transfer restrictions, treatment of stock options, and whether key contracts contain change-of-control or consent provisions. Completing this review first reduces the risk of unexpected diligence findings weakening the price negotiation.
At the contract stage, we calibrate the scope of the representations and warranties, the cap and survival period for indemnity claims, pre-closing covenants and exclusivity, to a level management can actually perform.
Example 2 Selling a company with no successor to a third party
The business is viable but there is no successor, and the owner wants to hand it over while preserving employment and customer relationships.
We start by testing whether a share transfer or a business transfer better fits the objective: whether the company is taken over as it stands, or only a specific business is carved out. Employment, licences and the allocation of undisclosed liabilities all turn on that choice.
Where shareholdings are dispersed, or where registrations have not been updated following an inheritance, that is the first item of work. To a buyer, certainty of acquiring the shares comes before price.
In the agreement we set out the treatment of the outgoing officers, undertakings on continued employment, and the scope of the seller's non-compete. We recommend committing these to writing rather than leaving them as understandings.
How an engagement proceeds
At the initial consultation we set out the stage the matter has reached and the issues that must be decided. We then provide our proposed approach and fees in writing, and begin work once you are satisfied.
M&A runs on a timetable set with a counterparty, so options narrow as instruction is delayed. The most useful time to consult is when an approach is received, or when you begin considering a transaction.
Contact
The first 30 minutes are free of charge. We advise in Japanese or English, and can meet online.