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Effissimo Capital Management: Request for an Extraordinary General Meeting of Shareholders of Toshiba Corporation

2020-12-17 15:56
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TOKYO -- (BUSINESS WIRE) --

Effissimo Capital Management Pte Ltd (hereinafter referred to as "we") today requested that Toshiba Corporation (hereinafter referred to as "Toshiba") call an Extraordinary General Meeting of Shareholders to ‘elect a person who will be charged to investigate the status of the operations and property of the Stock Company’ as set forth in Article 316, Paragraph 2 of the Companies Act. The specific aim is to investigate whether the 181st Ordinary General Meeting of Shareholders held on July 31, 2020 (hereinafter referred to as "the 181st AGM") was conducted in a fair and impartial manner.
Please refer to the Exhibit for the details of the resolutions proposed at the Extraordinary General Meeting of Shareholders and the reasons behind the proposal.

It remains to be opaque whether the 181st AGM was conducted in a fair and impartial manner, and this situation has not been rectified. The fair and impartial operation of the general meeting of shareholders is the foundation of the joint-stock corporation system. In order to safeguard the transparency that secures the fair and impartial operation of such meeting, we believe that it is necessary to bring to broad daylight the actual state of the 181st AGM through an investigation conducted by independent investigators.

(Exhibit)

The contents of the proposal

In order to investigate whether the 181st AGM at Toshiba held on July 31, 2020 was conducted in a fair and impartial manner (including the lawfulness and fairness of the resolutions thereat), Mr. Yoji Maeda, Mr. Takashi Kizaki and Mr. Takao Nakamura shall be elected as a person who will be charged to investigate the status of the operations and property of the Stock Company as set forth in Article 316, Paragraph 2 of the Companies Act (hereinafter referred to as "investigators").

Reason for the proposal

It is unclear whether the 181st AGM was conducted in a fair and impartial manner.
According to Toshiba’s news release “Counting of voting rights exercised at the Ordinary General Meeting of Shareholders for the 181st Fiscal Period” dated September 18, 2020, 1139 voting cards received through the day before the 181st AGM were not counted as valid votes. Regarding this matter, it was explained by Sumitomo Mitsui Trust Bank (SMTB), to which Toshiba entrusted vote counting tasks for the voting rights of Toshiba, that it illegally excluded the voting cards received on the last day of voting from the tally. As a result, the Financial Services Agency has issued an order to SMTB to submit a report on this matter. However, media coverage about the 181st AGM and our examination and copying of the voting cards, etc. reveal that there are a number of abnormal facts related to the tallying of votes which cannot be explained by the explanation provided by this alone.
In addition, media coverage has reported that some shareholders were pressured not to exercise their voting rights, and that proxy advisors were likewise pressured at the 181st AGM. We have interviewed several dozen major shareholders of Toshiba regarding this matter and have confirmed that there were in fact shareholders that have given up exercising their voting rights due to such pressure.
Given these circumstances, we have asked Toshiba management to establish a third-party committee consisting solely of independent members to investigate whether the 181st AGM was conducted in a fair and impartial manner, and to clarify the truth, and if the 181st AGM was not conducted in a fair and impartial manner, to investigate the causes for the failure and develop preventive measures so that such is not repeated in the future. However, roughly three months have passed since such request, and to date Toshiba has not established a third-party committee.
The exercise of voting rights is the most fundamental right vested in shareholders, and the fair and impartial operation of the shareholders’ meeting, where voting rights are exercised, is the foundation of the joint-stock company system. If voting cards, which were in fact valid were not counted as valid voting rights, or shareholders hindered from exercising their intended voting rights due to undue pressure - this would be nothing more than the denial of the most fundamental and inalienable right of shareholders. Such a situation cannot be condoned.
In order to safeguard the necessary transparency that secures the fair and impartial operation of the general meeting of shareholders at Toshiba, we have come to the conclusion that it is necessary to clarify the current state of uncertainty by conducting an investigation by investigators independent of Toshiba’s management. Since this investigation is related to the operation of the general meeting of shareholders, we believe that the investigation should be completed prior to the Ordinary General Meeting of Shareholders for this fiscal year (the 182nd AGM). Therefore, we have decided to request the convocation of an Extraordinary General Meeting of Shareholders and propose this resolution.
Under this proposal, Mr. Yoji Maeda, Mr. Takashi Kizaki and Mr. Takao Nakamura, are the candidates for persons who will be charged to investigate the status of the operations and property of the Stock Company as set forth in Article 316, Paragraph 2 of the Companies Act. All candidates have sufficient expertise and experience as attorneys at law. We believe that they will be able to engage in efforts to unravel the actual situation in a fair and objective manner as investigators, independent not only from the management of Toshiba but also from us. If this proposal is approved, the investigative report by the investigators will be reported to Toshiba shareholders at the subsequent general meeting of shareholders which is expected to be the Ordinary General Meeting of Shareholders for this fiscal year (the 182nd AGM).
We kindly ask fellow shareholders of Toshiba to understand the significance of this proposal, which is to protect the most fundamental and important right of shareholders – the ability to exercise voting rights, and to safeguard the transparency that secures the fair and impartial operation of the general meeting of shareholders going forward.

Career of the investigator candidates

Name

(Date of birth)

Summary of the career, positions, responsibilities, and other important roles held

Yoji Maeda

(June 15, 1964)

1990: Registered as a lawyer, joined Anderson, Mori & Rabinowitz

1999: Partner at Anderson Mori

2000: Partner at Taiyo Law Office (Paul, Hastings, Janofsky & Walker, Foreign Law Joint Enterprise)

2005: Partner at O’ Melveny & Myers (present)

Takashi Kizaki

(May 29, 1964)

1991: Registered as a lawyer, joined Kaneko & Iwamatsu

1999: Partner at Kaneko & Iwamatsu (present)

2004: Part-time lecturer at Tokyo Women's Medical University

2007: Arbitrator at the Medical ADR associated by the three Bar Associations in Tokyo (present)

2012: Mediator at the Financial Instruments Mediation Assistance Center (present)

2013: Practicing-Attorney-Professor for Civil Advocacy at the Legal Training and Research Institute of the Supreme Court of Japan

2015: Secretary of the Board of the Legal Training and Research Institute of the Supreme Court of Japan

2016: Examiner of the bar examination and the preliminary bar examination (Civil Procedure)

2019: Outside Corporate Auditor of Takachiho Koheki Co., Ltd. (First Section of TSE) (present)

Takao Nakamura

(August 25, 1965)

1989: Bank of Japan

1996: Director/CFO of Digital Garage, Inc.

1997: Representative Director and Vice President, COO/CFO of Digital Garage, Inc.

1999: Representative Director and President of Infoseek Japan K.K.

2008: Registered as a lawyer, joined Torikai Law Office

2009: Outside Director of PA Co., Ltd. (Second Section of TSE) (present)

2015: Partner at Torikai Law Office

2016: Partner at Wadakura Gate Law Office (present)

2016: Outside Director (Audit and Supervisory Committee Member) of Value Commerce Co., Ltd. (First Section of TSE) (present)

2018: Outside Director (Audit and Supervisory Committee Member) of Kayak Inc. (TSE Mothers) (present)

2019: Outside Director of Medical Data Vision Co., Ltd. (First Section of TSE) (present)

2019: Outside Corporate Auditor of Matsuya Co., Ltd. (First Section of TSE) (present)

View source version on businesswire.com: https://www.businesswire.com/news/home/20201216006102/en/

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