具体的な契約書の例は以下です。但し、簡略化しています。また、Whereas clauseやMiscellaneous Clauses等は省略しています。
新興国の場合は、ローンを株式にSwapする場合は、中央銀行の承認等が必要となるケースが多いと思います。また、ローンをいきなり株式に転換するのではなく、ローンを返済したことにして、そのローン返済金の金額が優先株になったという構成になります。
以下の例では、Malaysia（通貨はM$と仮定します）
1. Loan to the Company & Repayment
まず、株式に転換するローンの金額を確定します。そしてそのローンの返済日、即ち株式への転換日を定めます。
(a) As of the date hereof, there are the following outstanding loans in Malaysian Currency (“M$”) made by Parent to the Company.
Loan Principal in M$ Interest Loan Date Repayment Date
1 5,000,000 8.00% p.a 2019/11/30 2021/3/31
2 5,000,000 8.00% p.a 2020/1/31 2021/3/31
Total 10,000,000
(b) The Company agreed to repay to the Lender on the Repayment Date the principal amount of each loan (“Repayment Amount”).
(c) The accrued interest of each loan up to the Repayment Date will be refinanced to the Company from Parent on the Repayment Date after deducting the withholding tax, which the Company pays to the tax authority of Malaysia on behalf of Parent.
2. Subscription and Payment of Preference Shares
ローンの返済金額が払込額になりますのが、その新株を引き受け払込という形式になりますね。
(a) The Company shall issue the Preference Shares at the unit price of M$1,000.- per share, and, by using the Repayment Amount from the Company, Parent hereby shall, subject to the conditions set forth herein, subscribe and pay 100% of the Preference Shares on the issuance date of the Preference Shares. The Loan Repayment Date and the issuance date of the Preference Shares are same day and the number of new Preference Shares to be allocated to Parent and share capital amount to be increased by the Company on the issuance date shall be as mentioned in the following table.
(b) In accordance with the regulation of the Central Bank of Malaysia, the Company shall repay each loan on the Repayment Date and, at the same time, Parent shall subscribe and pay 100% of the Preference Shares on the issuance date of the Preference Shares (“Conversion”). When fractions of the Shares would be accrued as a result of the Conversion, Parent and the Company agree that such fractional Shares shall be rounded down to the nearest whole share.
Principal in M$ Issuance Date No. of Shares Unit Price Share Capital Amount
1 5,000,000 2021/3/31 5,000 M$1,000.- 5,000,000
2 5,000,000 2021/3/31 5,000 M$1,000.- 5,000,000
Total 10,000,000 10,000 10,000,000
3. Preference Shares
(a) The Preference Shares that the Company issues and allocates to Parent shall be non-cumulative, non-participating, with no-voting rights, with dividend preference and liquidation preference and convertible into 50 ordinary shares per one Preference Share upon call of the Board of Directors of the Company, by unanimous decision. The details of which shall be discussed and decided between Parent and the Company before convening a meeting of the Company’s shareholders ("Shareholder Meeting"). Parent 優先株の内容は、会社の定款に反映させないといけない、つまり定款変更の総会決議が必要ですね。この契約書は親子間の契約書なので、簡略化して詳しい優先株の内容は、記載していないです。
(b) 転換の提議は会社の取締役会が行い、株主総会で決議する構成にしています。If the Board of Directors of the Company decides, by unanimous vote, to convert all or part the Preference Shares in the ratio of one Preference Share to fifty (50) ordinary shares issued by the Company, Parent hereby undertakes the obligation to convene, participate, and vote to approve such conversion in any shareholders meeting of the Company and enter into, execute and sign any other agreement, contract or document that may be necessary to implement the conversion.
4. Shareholder’s Meeting 定款変更のための総会開催ですね。
The Company shall cause a shareholder meeting to be duly called and held as soon as reasonably practicable on or after the date of execution of this Agreement for the purposes of revising Bylaws necessary for the issuance of the Preference Shares and such other matters as may be mutually agreed upon by the parties in advance.
5. Representations and Warranties of the Parties まあ、形式的に当事者のRep.& Warrantyを入れています。
(a) The Company hereby represents and warrants to Parent as follows:
(i) As of the date hereof, the Company’s capital stock, fully subscribed and paid in is M$xx,xxx,xxx., divided into xx,xxx,xxx nominative ordinary shares with no par value.
(ii) The Company has full legal power to execute and deliver this Agreement and to perform its obligations hereunder. All acts required to be taken by the Company to enter into this Agreement and to carry out the transactions contemplated hereby have been properly taken, and this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms and does not conflict with, result in a breach or violation of or constitute a default under any instrument, contract or other agreement to which the Company is a party.
(b) Parent represents and warrants to the Company as follows:
Parent has full legal power to execute and deliver this Agreement and to perform its obligations hereunder. All acts required to be taken by Parent to enter into this Agreement and to carry out the transactions contemplated hereby have been properly taken, and this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable in accordance with its terms and does not conflict with, result in a breach or violation of or constitute a default under any instrument, contract or other agreement to which Parent is a party.
6. Conditions.
The obligations of the parties to consummate the transactions contemplated by this Agreement shall be subject that the shareholder approval of the Company, shall be obtained by the necessary affirmative vote at the Shareholders Meeting of the Company as described above in Section 4.
新興国の場合は、ローンを株式にSwapする場合は、中央銀行の承認等が必要となるケースが多いと思います。また、ローンをいきなり株式に転換するのではなく、ローンを返済したことにして、そのローン返済金の金額が優先株になったという構成になります。
以下の例では、Malaysia（通貨はM$と仮定します）
1. Loan to the Company & Repayment
まず、株式に転換するローンの金額を確定します。そしてそのローンの返済日、即ち株式への転換日を定めます。
(a) As of the date hereof, there are the following outstanding loans in Malaysian Currency (“M$”) made by Parent to the Company.
Loan Principal in M$ Interest Loan Date Repayment Date
1 5,000,000 8.00% p.a 2019/11/30 2021/3/31
2 5,000,000 8.00% p.a 2020/1/31 2021/3/31
Total 10,000,000
(b) The Company agreed to repay to the Lender on the Repayment Date the principal amount of each loan (“Repayment Amount”).
(c) The accrued interest of each loan up to the Repayment Date will be refinanced to the Company from Parent on the Repayment Date after deducting the withholding tax, which the Company pays to the tax authority of Malaysia on behalf of Parent.
2. Subscription and Payment of Preference Shares
ローンの返済金額が払込額になりますのが、その新株を引き受け払込という形式になりますね。
(a) The Company shall issue the Preference Shares at the unit price of M$1,000.- per share, and, by using the Repayment Amount from the Company, Parent hereby shall, subject to the conditions set forth herein, subscribe and pay 100% of the Preference Shares on the issuance date of the Preference Shares. The Loan Repayment Date and the issuance date of the Preference Shares are same day and the number of new Preference Shares to be allocated to Parent and share capital amount to be increased by the Company on the issuance date shall be as mentioned in the following table.
(b) In accordance with the regulation of the Central Bank of Malaysia, the Company shall repay each loan on the Repayment Date and, at the same time, Parent shall subscribe and pay 100% of the Preference Shares on the issuance date of the Preference Shares (“Conversion”). When fractions of the Shares would be accrued as a result of the Conversion, Parent and the Company agree that such fractional Shares shall be rounded down to the nearest whole share.
Principal in M$ Issuance Date No. of Shares Unit Price Share Capital Amount
1 5,000,000 2021/3/31 5,000 M$1,000.- 5,000,000
2 5,000,000 2021/3/31 5,000 M$1,000.- 5,000,000
Total 10,000,000 10,000 10,000,000
3. Preference Shares
(a) The Preference Shares that the Company issues and allocates to Parent shall be non-cumulative, non-participating, with no-voting rights, with dividend preference and liquidation preference and convertible into 50 ordinary shares per one Preference Share upon call of the Board of Directors of the Company, by unanimous decision. The details of which shall be discussed and decided between Parent and the Company before convening a meeting of the Company’s shareholders ("Shareholder Meeting"). Parent 優先株の内容は、会社の定款に反映させないといけない、つまり定款変更の総会決議が必要ですね。この契約書は親子間の契約書なので、簡略化して詳しい優先株の内容は、記載していないです。
(b) 転換の提議は会社の取締役会が行い、株主総会で決議する構成にしています。If the Board of Directors of the Company decides, by unanimous vote, to convert all or part the Preference Shares in the ratio of one Preference Share to fifty (50) ordinary shares issued by the Company, Parent hereby undertakes the obligation to convene, participate, and vote to approve such conversion in any shareholders meeting of the Company and enter into, execute and sign any other agreement, contract or document that may be necessary to implement the conversion.
4. Shareholder’s Meeting 定款変更のための総会開催ですね。
The Company shall cause a shareholder meeting to be duly called and held as soon as reasonably practicable on or after the date of execution of this Agreement for the purposes of revising Bylaws necessary for the issuance of the Preference Shares and such other matters as may be mutually agreed upon by the parties in advance.
5. Representations and Warranties of the Parties まあ、形式的に当事者のRep.& Warrantyを入れています。
(a) The Company hereby represents and warrants to Parent as follows:
(i) As of the date hereof, the Company’s capital stock, fully subscribed and paid in is M$xx,xxx,xxx., divided into xx,xxx,xxx nominative ordinary shares with no par value.
(ii) The Company has full legal power to execute and deliver this Agreement and to perform its obligations hereunder. All acts required to be taken by the Company to enter into this Agreement and to carry out the transactions contemplated hereby have been properly taken, and this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms and does not conflict with, result in a breach or violation of or constitute a default under any instrument, contract or other agreement to which the Company is a party.
(b) Parent represents and warrants to the Company as follows:
Parent has full legal power to execute and deliver this Agreement and to perform its obligations hereunder. All acts required to be taken by Parent to enter into this Agreement and to carry out the transactions contemplated hereby have been properly taken, and this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable in accordance with its terms and does not conflict with, result in a breach or violation of or constitute a default under any instrument, contract or other agreement to which Parent is a party.
6. Conditions.
The obligations of the parties to consummate the transactions contemplated by this Agreement shall be subject that the shareholder approval of the Company, shall be obtained by the necessary affirmative vote at the Shareholders Meeting of the Company as described above in Section 4.
