6178 日本郵政 2019-03-25 16:00:00
日本郵政株式会社とアフラック・インコーポレーテッド及びアフラック生命保険株式会社による「資本関係に基づく戦略提携」に基づく契約の締結について [pdf]
2019 年 3 月 25 日
会 社 名 日本郵政株式会社
代 表 者 名 取締役兼代表執行役社長
長門 正貢
（銘柄コード： 6178、東証第一部）
問 合 せ 先 ＩＲ室 (TEL.03-3477-0206)
日本郵政株式会社とアフラック・インコーポレーテッド
及びアフラック生命保険株式会社による
「資本関係に基づく戦略提携」に基づく契約の締結について
日本郵政株式会社（取締役兼代表執行役社長：長門正貢 以下、「当社」）並びにアフラック・インコーポレ
ーテッド（会長兼最高経営責任者：ダニエル P. エイモス 以下、「アフラック」）及びアフラック生命保険株
式会社（代表取締役社長：古出眞敏 以下、「アフラック生命」）は、2018 年 12 月 19 日付け「日本郵政株
式会社とアフラック・インコーポレーテッド及びアフラック生命保険株式会社による『資本関係に基づく戦略
提携』について」にてお知らせいたしましたとおり、同日付けで、資本関係に基づく戦略提携（以下、「戦略
提携」）に合意しております。
当該戦略提携に基づき、①当社、アフラック及びアフラック生命は、2018 年 12 月 19 日付けで「資本関係
に基づく戦略提携」に関する基本合意書を、②当社及び J&A Alliance Holdings Corporations（当社がア
フラック株式の取得に必要な金銭を信託して設定した信託の受託者。以下「信託受託者」という。）は、
2019 年 2 月 28 日に J&A Alliance Trust Voting Trust Agreement を、③当社、アフラック、信託受託者及
び当該信託受託者の株主である一般社団法人 J&A アライアンスは、2019 年 2 月 28 日に Shareholders
Agreement をそれぞれ締結しました。
「資本関係に基づく戦略提携」に関する基本合意書、J&A Alliance Trust Voting Trust Agreement 及び
Shareholders Agreement の主要な条項は、別紙 1 乃至 3 のとおりとなります。
別紙 1
「資本関係に基づく戦略提携」に関する基本合意書
日本郵政株式会社（以下、「日本郵政」という。）、アフラック・インコーポレーテッド及びア
フラック生命保険株式会社（以下、「アフラック生命」といい、日本郵政、アフラック・インコー
ポレーテッド及びアフラック生命を総称して、「本当事者」という。）は、以下のとおり合意した
ため、本合意書を締結する。
第1条（本合意書の目的）
本合意書の目的は、お客様本位の業務運営を更に強化するために、「資本関係に基づく戦略
提携」（以下、「戦略提携」という。）を通じて、本当事者間で長年に亘る営業及び業務上
の関係を通じて形成されている確固たる信頼関係を深化させること、協業によりシナジー効
果を発揮すること、及び両者の将来に亘る持続的な成長を目指すことである。戦略提携は、
以下の3本の柱によって構成される。
(1) 資本関係
(2) がん保険に関する取組みの再確認
(3) 新たな協業の取組みの検討
第2条（戦略提携に関する契約書）
以下の2つの契約書は、いずれも戦略提携に関する契約書であり、第(2)号の契約書の締結は
本合意書に従う。
(1) 本合意書
(2) 日本郵政、アフラック・インコーポレーテッド、米国法に基づき戦略提携のために設
立する信託（以下、「日本郵政信託」という。）の受託者及び当該受託者の所有者た
る日本法上の一般社団法人の間で締結する「Shareholders Agreement」（以下、「株主
契約」という。）
第3条（株主契約に基づく資本関係）
日本郵政は、株主契約に基づき、必要な許認可等を条件として、アフラック・インコーポレ
ーテッド普通株式の発行済株式総数（自己株式を除く。）の7％程度を、日本郵政信託を通
じて取得・保有し、10倍ルール（アフラック・インコーポレーテッドの定款において採用さ
れている、アフラック・インコーポレーテッド普通株式を48か月連続して、同一の実質株主
が保有し続けることで議決権が10倍になるというルール）適用後には、アフラック・インコ
ーポレーテッドを持分法適用会社とすることを主たる内容とする資本関係を構築する。 この
資本関係は、日本郵政によるアフラック・インコーポレーテッドの支配権若しくは経営権の
獲得又は経営への介入を目的とするものではなく、 資本関係を基礎とした戦略提携を通じて
シナジー効果を生み出し、 且つ、本当事者の利益を更に一致させることによって互いの株主
価値を発展させる体制の確立を目的とするものである。
第4条（日本郵政グループ3社によるがん保険に関する取組みの再確認）
日本郵政及びアフラック生命は、日本郵便株式会社（以下、「日本郵便」という。）及び株
式会社かんぽ生命保険（以下、「かんぽ生命」といい、日本郵政及び日本郵便と合わせて以
下、「日本郵政グループ3社」という。）との間で実施してきたがん保険に関する取組みを、
以下のとおり、再確認し、今後も進展させるべく合理的な努力をする。
(1) がん保険商品のニーズとお客様本位の業務運営
日本郵政グループ3社及びアフラック生命は、がん保険を通じてより多くの人々に安心
をお届けすることにより、お客様本位の業務運営を実践している。
(2) 営業上重要な商品との位置付け、目標設定等
日本郵政グループ3社において、アフラック生命のがん保険を営業戦略上重要な商品と
位置づけ、かんぽ生命の保険商品と同様に、社内目標を設定し、推進管理を行ってい
る。
(3) 日本郵便による代理店業務
日本郵便は、アフラック生命の生命保険募集代理店としてがん保険を販売している。
(4) かんぽ生命による代理代行
かんぽ生命は、アフラック生命の生命保険募集代理店としてがん保険を販売し、かつ、
日本郵便によるアフラック生命のがん保険販売を支援するための教育の代行業務も行
っている。
(5) かんぽ生命による再保険引受け
かんぽ生命は、日本郵便及びかんぽ生命が取り扱ったアフラック生命のがん保険の引
受リスクの一定割合について再保険引受けを行っている。
(6) がん保険販売、代理店手数料支払、及び保険金・給付金支払
ｱ. 日本郵便及びかんぽ生命は、年間200億円を超えるがん保険の新契約年換算保険
料の実績を挙げている。
ｲ. 日本郵便及びかんぽ生命は、アフラック生命から、年間150億円を超える手数料
の支払を受けている。
ｳ. 2008年以降に日本郵便及びかんぽ生命が販売したアフラック生命のがん保険に
基づいて支払った保険金・給付金は、累計で件数が1万2000件、金額が100億円を
超えており、お客様のお役に立っている。
(7) がんに関する啓発活動等
日本郵政グループ3社及びアフラック生命は、協力して、がんに関する啓発活動、がん
検診の推進、がんに関するチャリティイベントへの協賛、参加等の活動を行っている。
第5条（新たな協業の取組みの検討）
日本郵政及びアフラック生命は、戦略提携の一環として、日本郵便、かんぽ生命及びアフラ
ック・インコーポレーテッドの全部又は一部とともに、新たな協業の取組みの検討を行う。
新たな協業の取組みには、以下が含まれる。
(1) お客様本位の業務運営のベストプラクティスのための戦略的取組み
日本郵政及びアフラック生命は、日本郵便及びかんぽ生命又はそのいずれかとともに、
お客様本位の業務運営のベストプラクティスのための戦略的取組みとして、各種プロ
セスにおけるデジタルテクノロジーの活用を検討する。
(2) お客様本位の業務運営のための新商品開発における協力
日本郵政及びアフラック生命は、日本郵便及びかんぽ生命又はそのいずれかとともに、
その時々のお客様の多様なニーズにお応えすること、並びに、日本郵政グループ3社及
びアフラック生命の各社の企業価値向上に資することを目的に、日本郵便及びかんぽ
生命又はそのいずれかにおいて販売するアフラック生命の新商品の開発を検討する。
また、日本郵政グループ3社及びアフラック生命は、お客様の多様なニーズにお応えす
るため、日本郵便及びかんぽ生命又はそのいずれかにおいて販売するかんぽ生命又は
アフラック生命の新商品の共同開発において相互に協力することを検討する。
(3) 国内外での事業展開及び第三者への共同投資における協力
日本郵政及びアフラック生命は、アフラック・インコーポレーテッドとともに、国内
外での事業展開及び第三者への共同投資において相互に協力することを検討する。
(4) 資産運用における協力
本当事者は、アフラック・インコーポレーテッドのグループ企業（アフラック・アセ
ット・マネジメント・エルエルシー（米国資産運用子会社）及びアフラック・アセッ
ト・マネジメント株式会社（日本資産運用子会社）を含む。）が、その有するグロー
バルな資産運用のプラットフォームを活用して、日本郵政の企業グループのために資
産運用を行う機会を作ることを検討する。
第6条（最高経営者会議等）
1. 本当事者は、日本郵政及びアフラック・インコーポレーテッドの各最高経営執行者による
定例会議を「最高経営者会議」として引き続き活用し、そこにおける検討課題を戦略提携
に係る事項にも拡張する。最高経営者会議においては、アフラック・インコーポレーテッ
ドから日本郵政に対して、日米証券法その他の適用ある法令（金融商品取引所その他の自
主規制機関の規則又は規制を含む。）を遵守のうえ、日本郵政が投資家兼戦略的パートナ
ーとしての利益を適切に守るために合理的に必要な情報の提供等を行うことができる。
2. 本当事者は、これまで日本郵政グループ3社及びアフラック生命の間で開催してきた、各社
の代表執行役、代表取締役等による定例会議を「戦略提携委員会」として引き続き活用し、
そこにおける検討課題を戦略提携に係る事項にも拡張する。
第7条（戦略提携に関する公表）
戦略提携に関する一切の公表の時期及び方法については、本当事者間での合意により、日米
証券法その他の適用ある法令（金融商品取引所その他の自主規制機関の規則又は規制を含
む。）を遵守のうえ、決定する。公表内容には、別途協議の上合意する表現により、以下を
含める。
(1) 日本郵政は、株主契約に基づき、アフラック・インコーポレーテッド普通株式を、日
本郵政信託を通じて取得・保有する。これは、日本郵政によるアフラック・インコー
ポレーテッドの支配権若しくは経営権の獲得又は経営への介入を目的とするものでは
ない。
(2) 日本郵政グループ3社及びアフラック生命は、第4条に定めるがん保険に関する取組み
を行っており、今後の進展に向けて努力をする。
(3) 日本郵政グループ3社によるがん保険の販売等により生じるアフラック インコーポレ
・
ーテッドの利益の一部を日本郵政が持分法の適用によって取り込むことにより、両者
の将来に亘る持続的な成長サイクルが生まれる。
(4) 本当事者は、新たな分野におけるシナジー効果が発揮できる協業等の取組みを検討す
る。
(5) 日本郵政及びアフラック・インコーポレーテッドの各最高経営執行者による定例会議
である「最高経営者会議」を開催し、戦略提携に係る検討課題の協議を行う。
第8条（持株会社の責任）
日本郵政は、本合意書の内容について、持株会社としての責任において、日本郵便及びかん
ぽ生命の同意と賛同を確保すべく合理的な努力をする。アフラック・インコーポレーテッド
は、本合意書の内容について、持株会社としての責任において、アフラック生命、並びに、
アフラック・アセット・マネジメント・エルエルシー及びアフラック・アセット・マネジメ
ント株式会社の同意と賛同を確保すべく合理的な努力をする。
第9条（本合意書の終了）
1. 本合意書は、以下に掲げる場合に限り、終了する。
(1) 本当事者が書面により本合意書を合意解約した場合
(2) 本当事者の一方（本号において以下、「不履行当事者」）が本合意書に基づくその者
の義務を重要な点において履行せず、不履行当事者以外の本当事者が、不履行当事者
に対して、催告を行った後も相当期間内に当該不履行が治癒されないことを以って、
本合意書を解約する場合
(3) 日本郵便及びかんぽ生命の両方がアフラック生命のがん保険の販売を終了した場合
(4) 株主契約が終了した場合
(5) 本当事者の一方が第3項又は第4項に基づき本合意書を解約する場合
2. 本当事者は、日本郵政信託が保有するアフラック・インコーポレーテッドにおける議決権
割合に拘わらず、アフラック・インコーポレーテッドを日本郵政の持分法適用会社とする
ことが事実上不可能であることが確認された場合には、本合意書を、資本関係（ただし、
アフラック・インコーポレーテッドを日本郵政の持分法適用会社にしないことを前提とす
る）に基づく戦略的提携に関する合意書に変更するべく、誠実に協議を行う。また、本当
事者は、日本又は米国の法令を遵守するために必要な場合には、本合意書を変更するべく、
誠実に協議を行う。
3. 前項に基づく誠実な協議を実施したにも拘わらず合意に達することができない場合には、
本当事者は、それぞれ単独で本合意書を解約することができる。
4. アフラック・インコーポレーテッドがアフラック生命の株式の発行済株式総数（自己株式
を除く。）又は議決権総数の過半数を直接又は間接に有しないこととなる場合には、日本
郵政は本合意書を解約することができる。
5. 第1項各号に基づく本合意書の終了の効力は、将来に向かってのみ効力を有し、遡及的な効
力を有しない。
第10条（準拠法）
本合意書は、日本法を準拠法とし、同法に従って解釈される。
第11条（裁判管轄）
本合意書に起因し又は関連して生じた一切の紛争に関しては、東京地方裁判所を第一審の専
属合意管轄裁判所とする。
第12条（誠実協議）
本合意書に関して、解釈・運用上の疑義が生じた場合には、本当事者は誠実に協議を行って
速やかに解決するように努力する。
（本頁以下余白）
本合意書締結の証として正本3通を作成し、日本郵政、アフラック・インコーポレーテッド及びア
フラック生命は署名のうえ、各々1通を保有する。
2018年12月19日
日本郵政株式会社 アフラック・インコーポレーテッド
東京都千代田区大手町二丁目3番1号 米国ジョージア州コロンバス、ウィントンロー
ド1932
長門正貢 ダニエル・ピー・エイモス
取締役兼代表執行役社長 最高経営責任者
アフラック生命保険株式会社
東京都新宿区西新宿二丁目1番1号新宿三井ビル
チャールズ・ディトマース・レイク二世
代表取締役会長
古出眞敏
代表取締役社長
別紙 2
J&A ALLIANCE TRUST
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT is made as of the 28th day of February, 2019
BETWEEN:
JAPAN POST HOLDINGS CO., LTD., a company organized under the laws of Japan
(hereinafter referred to as both the “Settlor” and the “Beneficiary”, as applicable)
-AND-
J&A Alliance Holdings Corporation, a corporation organized under the laws of the State of
Delaware
(hereinafter referred to as the “Trustee”)
RECITALS:
A. The Settlor desires to settle a grantor trust to be known as the “J&A Alliance Trust”.
B. Aflac Incorporated (the “Company”), a Georgia corporation, the Settlor, the Trustee, in its
capacity as trustee of the Trust, and General Incorporated Association J&A Alliance (“ISH”), a
Japanese general incorporated association and sole record owner of the Trustee, intend to enter
into a shareholders agreement (the “Shareholders Agreement”) in the form attached to that certain
letter agreement, dated as of December 19, 2018, by and between the Settlor and the Company.
C. For the purpose of settling the trust, the Settlor will transfer to the Trustee from time to time
cash to purchase Company Common Stock in accordance with the Shareholders Agreement to be
held in trust in accordance with this Agreement (the “Aflac Shares”).
D. The Trustee has agreed to hold the Aflac Shares together with all other amounts and
properties subsequently received by it in trust for the benefit of the Beneficiary in accordance with
the provisions hereinafter set forth.
NOW THEREFORE the Settlor and the Trustee hereby agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement and in the recitals, unless there is something in the subject matter or context
inconsistent therewith:
(a) “Aflac Shares” has the meaning set forth in the recitals above;
(b) “Basic Agreement” means that certain Basic Agreement regarding the “Strategic Alliance
Based on Capital Relationship” dated as of December 19, 2018 by and among, the Company,
Aflac Life Insurance Japan Ltd., a Japanese corporation and wholly owned subsidiary of the
Company, and the Settlor;
(c) “Beneficiary” has the meaning set forth in the recitals above;
(d) “Company” has the meaning set forth in the recitals above;
(e) “Company Common Stock” means the outstanding and issued common stock, par value
$0.10 per share, of the Company;
(f) “Domiciliary Regulators” means (i) the Director of the Nebraska Department of Insurance,
(ii) the Superintendent of the New York State Department of Financial Services, (iii) the
Commissioner of the Oklahoma Insurance Department, and (iv) any other insurance
regulator in a state where a United States insurance company Subsidiary of the Company is
domiciled; provided, if all United States insurance company Subsidiaries of the Company
domiciled in any one of the foregoing states redomesticates, merges or otherwise cease to
exist as domestic insurers in such state, then the Director, Commissioner, Superintendent or
other insurance regulatory authority in such state shall no longer be a Domiciliary Regulator;
(g) “Expiration Date” means the date upon which the Initial Term or a Renewal Term, as the
case may be, expires without renewal in accordance with section 2.5 hereof;
(h) “Independence Criteria” has the meaning set forth in section 5.3 hereof;
(i) “Initial Term” has the meaning set forth in section 2.5 hereof;
(j) “In-Kind Distributions” means any distribution of Company Common Stock or other equity
securities or interests of the Company having voting rights in the Company or any of its
United States insurance company Subsidiaries (whether directly or indirectly through one or
more other entities) that is paid by the Company upon the Subject Shares;
(k) “ISH” has the meaning set forth in the recitals above;
(l) “Losses” means any and all liabilities, obligations, losses, damages, penalties, taxes, claims,
suits, costs, expenses or disbursements (including without limitation legal fees and expenses)
of any kind and nature;
(m) “Person” means any individual, corporation, company, voluntary association, partnership,
joint venture, trust, limited liability company, unincorporated organization, governmental
authority or any agency, instrumentality or political subdivision thereof or any other form of
entity;
(n) “Renewal Term” has the meaning set forth in section 2.5 hereof;
(o) “Settlor” has the meaning set forth in the recitals above;
(p) “Shareholders Agreement” has the meaning set forth in the recitals above;
(q) “Subject Shares” means, collectively, the Aflac Shares and any other Company Common
Stock held by the Trust.
(r) “Subsidiary” means, as to any Person, any corporation or other entity of which: (i) such
Person, or a Subsidiary of such Person, is a general partner (if a limited partnership) or
managing member (if a limited liability company) or (ii) at least a majority of the
outstanding equity interest having by the terms thereof ordinary voting power to elect a
majority of the board of directors or similar governing body of such corporation or other
entity is at the time directly or indirectly owned or controlled by such Person or one or more
of its Subsidiaries;
(s) “Termination Date” means the earlier of:
(i) the Expiration Date; and
(ii) the Voluntary Termination Date;
(t) “this Agreement”, “hereto”, “hereunder”, “hereof”, “herein”, “herewith” and similar
expressions refer to this Voting Trust Agreement and not to any particular Article, section,
subsection, paragraph, clause, subdivision or other portion hereof;
(u) “Trust” means the trust set out in this Agreement;
(v) “Trustee” has the meaning set forth in the recitals above;
(w) “Trustee Director Qualifications” has the meaning set forth in section 5.3 hereof;
(x) “Trustee Directors” means the individuals selected as the directors of the board of directors
of the Trustee and meeting the Trustee Director Qualifications set forth in section 5.3;
(y) “Trust Fund” means:
(i) the Subject Shares;
(ii) all other moneys, securities, property and assets paid or transferred to and accepted
by or in any manner acquired by the Trustee and held by the Trustee on the trust
herein declared; and
(iii) all moneys, securities, property or assets substituted for or representing all or any
part of the foregoing; and
(z) “Voluntary Termination Date” has the meaning set forth in section 2.5 hereof.
1.2 Interpretation Not Affected by Headings, etc.
The division of this Agreement into Articles, sections, subsections and paragraphs, and the insertion of
headings are for convenience of reference only and shall not affect the construction or interpretation of this
Agreement. In this Agreement, words importing the masculine gender include the feminine and neuter
genders and vice versa.
1.3 Invalidity of Provisions
Each of the provisions contained in this Agreement is distinct and severable and a declaration of
invalidity or unenforceability of any such provision by an arbitral panel shall not affect the validity or
enforceability of any other provision hereof.
1.4 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without giving effect to conflicts of laws principles thereof, and the laws of the United States applicable
therein; provided that any doctrine of sovereign immunity is expressly waived. The courts of the United
States and its political subdivisions shall have primary supervision over the administration of the Trust.
1.5 Enurement
This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective
successors and assigns including, without limitation, a liquidator, receiver, trustee or debtor-in-possession of
any party.
1.6 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same instrument.
ARTICLE 2
CREATION OF THE TRUST
2.1 Settlement of Trust
(a) The Settlor hereby establishes, pursuant to the provisions of this Agreement and the laws of
the state of New York, a grantor trust to be known as the “J&A Alliance Trust.”
(b) The Trustee hereby accepts appointment as the Trustee under this Agreement and
acknowledges that it is holding, and shall continue to hold, for the exclusive benefit of the
Beneficiary, the Trust Fund upon the trust and subject to the powers and provisions
contained in this Agreement until the Termination Date.
2.2 Irrevocable Trust
The Trust is intended and is hereby declared to be irrevocable until it is terminated by the Beneficiary
in accordance with section 2.5 hereof.
2.3 Principal Office
The principal office of the Trust shall be located at such place or places as the Trustee may designate
from time to time. The principal office of the Trust is initially located at [ ].
2.4 Purpose of the Trust
(a) The purpose of the Trust is to conserve and protect the assets in the Trust Fund for the
exclusive use and benefit of the Beneficiary. So long as this Agreement remains in effect,
the Trust (or the Trustee acting on behalf of the Trust) shall not undertake any business,
activity or transaction except as expressly provided herein or contemplated hereby.
(b) Notwithstanding any other provision of this Agreement, the Trustee shall use the assets of
the Trust deposited with the Trustee by the Settlor or for the benefit of the Beneficiary to
purchase Company Common Stock as instructed by the Settlor from time to time in
accordance with the Shareholders Agreement, and subject to any required regulatory
approvals and applicable law. The Trustee shall hold and shall not convert, sell, transfer,
mortgage, pledge or in any manner dispose of the Subject Shares prior to the Termination
Date, except as instructed, directly or indirectly, by the Settlor from time to time in
accordance with the Shareholders Agreement, and subject to any required regulatory
approvals and applicable law.
(c) Notwithstanding the foregoing, each of the Settlor and the Trustee hereby agrees that it will
not purchase, promise or threaten to purchase, dispose of, or promise or threaten to dispose
of Subject Shares or Company Common Stock in any manner as a condition or inducement
of specific action or non-action by the Company or any of its United States insurance
company Subsidiaries.
2.5 Term and Termination of Trust
(a) This Agreement shall be effective as of the date hereof and shall expire on the ten (10) year
anniversary of the date hereof (the “Initial Term”), unless earlier terminated pursuant to
section 2.5(b) or renewed pursuant to this section 2.5(a). This agreement may be renewed
for successive ten (10) year terms (each a “Renewal Term”), unless earlier terminated
pursuant to section 2.5(b), upon written notice by the Beneficiary to the Trustee not earlier
than 90 days prior to the end of the Initial Term or a Renewal Term, as applicable.
(b) The Beneficiary may, at any time, deliver a written instrument signed by the Beneficiary
expressing its intent to terminate this Agreement as of a particular date (the “Voluntary
Termination Date”); provided that as of such date, no Aflac Shares or any other Company
Common Stock shall be held by the Trust.
(c) This Agreement and Trust shall terminate on the Termination Date.
2.6 Standard of Care
The Trustee will exercise its powers and duties hereunder honestly, in good faith and in the best
interest of the Beneficiary and in connection therewith will exercise that degree of care, diligence and skill that
a reasonably prudent person would exercise in dealing with its own assets and affairs.
2.7 Legal Title
Legal title to the assets in the Trust Fund shall be vested in the Trustee in its capacity as trustee of the
Trust.
2.8 Tax Treatment
For U.S. federal income tax purposes, the Trust shall constitute a disregarded entity or a grantor trust.
2.9 No Trust Certificates
No trust certificates shall be issued for any reason.
ARTICLE 3
DISTRIBUTIONS OF INCOME AND CAPITAL
3.1 Distributions Prior to the Termination Date
Prior to the Termination Date:
(a) The Trustee shall irrevocably instruct the Company to pay all dividends and distributions,
other than In-Kind Distributions, upon the Subject Shares directly to the Beneficiary. Upon
such instructions being given by the Trustee to the Company, all liability of the Trustee with
respect to such dividends and distributions shall cease, except that the Trustee shall be
obligated to pay to the Beneficiary any dividend or distribution paid by the Company to the
Trustee in contravention of the instructions given by the Trustee. All such dividends and
distributions shall be promptly paid to the Beneficiary and in no event shall the Trustee
accumulate or reinvest any such dividends or distributions;
(b) The Trustee shall irrevocably instruct the Company to pay all In-Kind Distributions directly
to the Trust for the sole benefit of the Beneficiary in accordance with this Agreement;
(c) The Trustee shall promptly pay to the Beneficiary all proceeds from the sale, exchange or
other disposition of the Subject Shares or other property held by the Trustee or the Trust, and
the Trustee shall irrevocably instruct the Company to pay such proceeds directly to the
Beneficiary to the extent payable by Company; and
(d) The Trustee shall pay the whole of the annual net income from the Trust Fund (to the extent
not otherwise paid to the Beneficiary pursuant to sections 3.1(a) and 3.1(c) hereof) to the
Beneficiary.
(e) For the avoidance of doubt, the Trustee shall from time to time pay to the Beneficiary any
cash that is contributed to the Trust Fund to purchase Aflac Shares to the extent that such
funds exceed the amount necessary to purchase such Aflac Shares and all related expenses.
3.2 Distribution on the Termination Date
On the Termination Date, the Trustee shall pay or transfer the Trust Fund to the Beneficiary.
ARTICLE 4
POWERS AND DUTIES OF THE TRUSTEE
4.1 Actions Upon Instructions
The business and affairs of the Trust shall be managed by, and under the direction of, the Trustee.
4.2 Rights and Powers of Trustee with respect to the Subject Shares
(a) The Trustee shall execute and deliver the Shareholders Agreement prior to acquiring any
Subject Shares and no later than February 28, 2019.
(b) The Trustee shall purchase Company Common Stock and hold as registered owner all
Subject Shares pursuant to the provisions of section 2.4(b) of this Agreement.
(c) The Trustee shall possess and be entitled to exercise, subject to the provisions hereof, the
Shareholders Agreement, the Company’s articles of incorporation and by-laws (as each may
be amended from time to time) and applicable law, all the rights and powers of registered
owners of the Subject Shares as long as they are subject to this Agreement, including, but
without limitation, the right and power (i) to vote and exercise all other rights with respect to
the Subject Shares on every matter for which the Subject Shares may be voted, or to give
written consent in lieu of voting thereon, (ii) to waive notice of any regular or special
meeting of stockholders of the Company, (iii) to call meetings of stockholders of the
Company and (iv) to exercise all other voting rights and powers pertaining to ownership of
the Subject Shares; it being expressly stipulated that, subject to section 4.4 no voting right
shall pass to others under this Agreement or by or under any other agreement express or
implied.
(d) The Trustee is authorized to sell Subject Shares as instructed, directly or indirectly, by the
Settlor in accordance with the provisions of sections 2.4(b) and 2.4(c) of this Agreement, and
subject to any required prior regulatory approval and applicable law.
(e) The Trustee is authorized to become a party to or prosecute or defend or intervene in any
suits or legal proceedings in its capacity as stockholder of the Company.
4.3 Additions to Trust Fund
The Settlor, or any other person with the approval of the Trustee, may from time to time add to the
Trust Fund assets or property acceptable to the Trustee; provided that assets deposited in the Trust Fund shall
be limited to (i) the Subject Shares, (ii) cash transferred from time to time to purchase Company Common
Stock and interest payments received thereon, (iii) In-Kind Distributions, and (iv) proceeds from the sale,
exchange or other disposition of the Subject Shares and interest payments received thereon. Trust Fund assets
shall be used by the Trustee in accordance with this Agreement.
4.4 Shareholders Agreement
The Trustee shall enter into the Shareholders Agreement and shall act in accordance with the terms of
the Shareholders Agreement including, without limitation, with respect to voting the Subject Shares.
4.5 No Interest in Trust
For the avoidance of doubt, in no event shall the Trustee hold any beneficial or economic interest in the
corpus or income of the Trust, including in the Trust Fund.
4.6 No Government Influence
The Trustee shall exercise all such powers, and take all such steps and actions, as the Trustee considers
reasonably necessary or advisable to ensure that neither the Settlor, except as expressly provided herein, nor
the Government of Japan, directly or indirectly, exercises any control under U.S. insurance laws over the
manner in which the Trustee discharges its powers and duties under this Agreement.
4.7 Books and Records
The Trustee shall maintain records and books of account relating to the assets in the Trust Fund
maintained on a basis to facilitate compliance with the tax reporting requirements of the Trust and shall, at all
reasonable times, permit the Beneficiary to have access, during normal business hours and upon reasonable
notice, to inspect and/or copy (at the Beneficiary’s own expense), the financial records relating to the Trust.
4.8 Information Requests; Other
Upon written request of the Beneficiary, the Trustee shall provide the Beneficiary with information
within the control of the Trustee and reasonably requested by the Beneficiary to allow the Beneficiary to
comply with any tax return filing, regulatory filing, reporting or record keeping requirements of applicable law
or for the Beneficiary’s equity accounting method purposes, or required under the Shareholders Agreement.
The Trustee shall also file (or cause to be filed) any other applications, filings, statements, returns or
disclosures relating to the Trust that are required by any governmental authority or required under the
Shareholders Agreement.
4.9 Ancillary Powers
The Trustee shall possess and be entitled to exercise such ancillary and incidental powers as may be
necessary or desirable to carry out and give effect to any of the foregoing powers, or any other provisions of
this Agreement.
4.10 Powers and Discretions Absolute
Every discretion or power hereby conferred on the Trustee shall be an absolute and uncontrolled
discretion or power, except as provided in this Agreement.
ARTICLE 5
CONCERNING THE TRUSTEE AND TRUSTEE DIRECTORS
5.1 Number of Trustees
From the date hereof and at any given time thereafter, the number of Trustees shall be one (1).
5.2 Initial Trustee Directors
As of the date hereof and until such individual’s resignation, incapacity, disqualification or removal
for cause pursuant to section 5.5 hereof, [ ], [ ] and [ ] shall be the Trustee Directors of the Trustee.
5.3 Number of Trustee Directors
From the date hereof and at any given time thereafter, the number of Trustee Directors shall be three
(3), subject to the requirements that (i) two (2) such Trustee Directors be individuals who qualify as
independent from each of the Settlor, the Beneficiary and the Company under the criteria set forth in section
303A.02(b) of the New York Stock Exchange Listed Company Manual as in effect on the date hereof (the
“Independence Criteria”) and (ii) one (1) such Trustee Director be an individual nominated by the Beneficiary
who either (a) qualifies as independent from each of the Settlor, the Beneficiary and the Company under the
Independence Criteria or (b) has given an undertaking, substantially in the form attached hereto as Exhibit A,
to act independently (the requirements in (i) and (ii), collectively, the “Trustee Director Qualifications”).
5.4 Replacement of a Trustee Director
In the event of resignation, incapacity, disqualification or removal for cause pursuant to section 5.5
hereof, the Settlor shall promptly nominate after the vacancy arising, a substitute Trustee Director for election
in accordance with the bylaws of the Trustee; provided that the successor Trustee Director must (i) meet the
Trustee Director Qualifications set forth in section 5.3 and (ii) be approved by the Domiciliary Regulators as
provided in section 5.7.
5.5 Removal of a Trustee Director
If at any time a Trustee Director (i) commits a material breach of this Agreement or the Shareholders
Agreement, (ii) is disqualified due to conduct involving fraud or dishonesty or charges of the same by a
government agency, (iii) is disqualified due to disqualification as a director, officer or controlling person of a
U.S. or Japanese public company or a U.S. or Japanese domestic insurer or (iv) suffers incapacity, the Trustee
Director shall be automatically and immediately removed as a Trustee Director in accordance with the bylaws
of the Trustee without any further steps or formalities.
5.6 Director Trustee Ceasing to Meet the Trustee Director Qualifications
If a Trustee Director ceases for any reason to meet the Trustee Director Qualifications set forth in
section 5.3, such Trustee Director shall be disqualified from serving as a Trustee Director and shall be deemed
to have resigned (without further action) as a Trustee Director effective immediately upon so ceasing to meet
the Trustee Director Qualifications.
5.7 Approval of the Domiciliary Regulators
All appointments of Trustee Directors under Article 5 shall be subject to the prior approval of the
Domiciliary Regulators to the extent required by applicable law or by the Domiciliary Regulators.
5.8 Compensation of Trustee
The Trustee shall serve without compensation. The Trustee will be entitled to reimbursement, to be
paid by the Settlor, for:
(a) Reasonable out-of-pocket expenses incurred by the Trustee to register and hold the Subject
Shares and make distributions or remit proceeds in accordance with this Agreement,
including, without limitation, (i) fees paid to Trustee Directors for their time and expertise,
(ii) fees paid for outsourcing tax, accounting, legal and other administrative services
regarding the Trustee’s corporate affairs, (iii) payments of corporate tax and any other tax
applicable to the Trustee and (iv) any other maintenance costs of the Trustee; and
(b) Reasonable costs for securing professional advice as the Trustee reasonably determines to be
necessary for the proper performance of its Trustee duties.
5.9 Action by Trustee
The Trustee may act by a written consent signed by a majority of the Trustee Directors or by the
affirmative vote of a majority of the Trustee Directors at a meeting called by any Trustee Director where there
is a quorum upon two (2) days’ notice to the other Trustee Directors, unless such notice is waived by each
Trustee Director not receiving such notice. For the avoidance of doubt, with respect to any removal under
section 5.5, the Trustee Director who is being removed shall not be included in the calculation of a majority of
the Trustee Directors. Two (2) Trustee Directors shall constitute a quorum for the transaction of business at a
meeting thereof. The Trustee Directors shall have the power to designate one Trustee Director to execute
certificates and other documents on behalf of all of them in furtherance of their collective decisions. The
Trustee Directors may, from time to time, adopt and/or amend their own rules of procedure, provided that such
amended rules of procedure shall not be inconsistent with this Agreement, and shall record and keep records of
all their proceedings at their office.
5.10 Designation with Domiciliary Regulators
The Trustee shall take such steps as are necessary to have itself designated as a controlling person of
the Company’s United States insurance company Subsidiaries in the Form A or change of control applications
to be filed with the Domiciliary Regulators and any similar filings with other Domiciliary Regulators for any
United States insurance company Subsidiary formed or acquired by the Company after the date of this
Agreement, and consistent with the terms of this Trust shall comport itself and the actions of the Trust
consistent with the requirements of applicable law with respect thereto.
5.11 Notice to Domiciliary Regulators
The Trustee shall provide the Domiciliary Regulators with written notice promptly after, or if required
by applicable law or by the Domiciliary Regulators, prior to the occurrence of (i) the appointment of a
replacement Trustee Director pursuant to section 5.4 hereof, (ii) the termination of this Trust and (iii) any
amendment to this Agreement pursuant to section 7.1 hereof.
5.12 Liability of Trustee and Directors
The Trustee and Trustee Directors shall retain no liability for actions under this Agreement other than
for willful misconduct or gross negligence and, in the case of the Trustee Directors, individual willful
misconduct or gross negligence. No bond or other security is required. The provisions of this section 5.12
shall survive termination of the Trust and this Agreement.
5.13 Indemnification
The Settlor hereby assumes liability for and agrees to indemnify, reimburse and hold harmless the
Trustee and each Trustee Director from and against any and all Losses, liabilities or expenses that may be
imposed on, incurred by or asserted against the Trustee or such Trustee Director, as the case may be, arising
out of, in connection with or related to such Trustee’s or Trustee Director’s performance under this Agreement,
except (i) with respect to the Trustee, in the case of gross negligence or willful misconduct on the part of the
Trustee and (ii) with respect to a Trustee Director, in the case of individual gross negligence or willful
misconduct on the part of such Trustee Director. The provisions of this section 5.13 shall survive termination
of the Trust and this Agreement.
ARTICLE 6
DISSOLUTION OR REORGANIZATION OF COMPANY
6.1 Dissolution of the Company
In the event of the dissolution or total or partial liquidation of the Company, whether voluntary or
involuntary, the Trustee shall instruct the Company to make any distribution of moneys, securities, rights or
property in respect of the Subject Shares directly to the Beneficiary and the Trustee shall distribute to the
Beneficiary any distribution received by the Trustee in contravention of such instructions. In no event shall
the Trustee accumulate or reinvest any such moneys, securities, rights or property.
6.2 Reorganization of the Company
In the event the Company is merged into or consolidated with another corporation, or all or
substantially all of the assets of the Company are transferred to another corporation, then in connection with
such merger, consolidation or transfer the term “Company” for all purposes of this Agreement shall be deemed
to include such successor corporation, and the Trustee shall receive and hold under this Agreement any stock
of such successor corporation having voting powers received on account of the ownership, as Trustee
hereunder, of the shares held hereunder prior to such merger, consolidation or transfer. Any other moneys,
securities, rights or property received by the Trustee in connection with such merger, consolidation or transfer
to which the Beneficiary is entitled shall be distributed promptly by the Trustee to the Beneficiary and in no
event shall the Trustee accumulate or reinvest any such moneys, securities, rights or property.
ARTICLE 7
MISCELLANEOUS
7.1 Amendment and Waiver
The Settlor and the Trustee may, with the prior written consent of the Domiciliary Regulators, from
time to time prior to the Termination Date by written instrument add to, remove, waive or otherwise vary all or
any of the trusts, powers and provisions of this Agreement, other than the definitions of “Beneficiary”,
“Domiciliary Regulators” and “Termination Date” in section 1.1 and sections 2.2, 2.6, 3.1, 3.2, 4.4, 4.6 and this
section 7.1, in relation to all or any part of the Trust Fund in such manner as the Settlor and the Trustee consider
is for the benefit of the Beneficiary.
7.2 Notices
(a) Any notice hereunder shall be sent to all the parties by registered or certified mail, return
receipt requested, as follows:
The Settlor and the Beneficiary:
Japan Post Holdings Co., Ltd.
2-3-1, Otemachi, Chiyoda-ku
Tokyo 100-8791, Japan
Attn: Hiroaki Kawamoto
Managing Executive Officer
Email: [•]
Fax: [•]
With a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attn: Nicholas F. Potter
E. Drew Dutton
Email: nfpotter@debevoise.com
eddutton@debevoise.com
Fax: (212) 909-6836
Nishimura & Asahi
Otemon Tower, 1-1-2 Otemachi, Chiyoda-ku
Tokyo 100-8124, Japan
Attn: Tatsuya Tanigawa
Tatsuya Nakayama
Email: t_tanigawa@jurists.co.jp
t2_nakayama@jurists.co.jp
Fax: +81-3-6250-7200
The Trustee:
J&A Alliance Holdings Corporation
[•]
Attn: [•]
Fax: [•]
With a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attn: Nicholas F. Potter
E. Drew Dutton
Email: nfpotter@debevoise.com
eddutton@debevoise.com
Fax: (212) 909-6836
Nishimura & Asahi
Otemon Tower, 1-1-2 Otemachi, Chiyoda-ku
Tokyo 100-8124, Japan
Attn: Tatsuya Tanigawa
Tatsuya Nakayama
Email: t_tanigawa@jurists.co.jp
t2_nakayama@jurists.co.jp
Fax: +81-3-6250-7200
(b) All distributions of cash, securities or other property hereunder by the Trustee to the
Beneficiary may be made in the same manner as hereinabove provided for the giving of
notices to the Beneficiary or in such other manner as may be described in writing from time
to time by notice from the Beneficiary to the Trustee.
(c) All notices concerning amendments, extensions or the termination of this Agreement or
concerning the resignation, disqualification, incapacity or removal of any of the Trustee
Directors shall also be delivered to the Domiciliary Regulators.
IN WITNESS WHEREOF Japan Post Holdings Co., Ltd., in its capacity as Settlor and in its capacity
as Beneficiary, and the Trustee, have executed this Agreement as of the date first above written.
JAPAN POST HOLDINGS CO., LTD., as
Settlor and Beneficiary
By: Masatsugu Nagato
Title: President & CEO, Director and
Representative Executive Officer
[Signature Page – Voting Trust Agreement]
J&A ALLIANCE HOLDINGS
CORPORATION
By:
Title:
[Signature Page – Voting Trust Agreement]
EXHIBIT A
Form of Director Undertaking
See attached.
[FORM OF DIRECTOR UNDERTAKING]
The Honorable Linda Lacewell
Superintendent of Financial Services
New York State Department of Financial Services
One State Street
New York, NY 10004-1511
Special Commitment to the New York State Department of Financial Services
Dear Superintendent Lacewell:
I, [NAME], in my capacity as a director of the board of directors of J&A Alliance Holdings Corporation,
a Delaware corporation (the “Trustee”), agree that I will take all such steps and actions as I consider necessary or
advisable to ensure that neither Japan Post Holdings Co., Ltd. nor the Government of Japan, directly or indirectly,
exercises any control or controlling influence over the manner in which I discharge my powers and duties as a
director of the board of directors of the Trustee.
Very truly yours,
___________________________
Name:
Title: Director
Date:
別紙 3
SHAREHOLDERS AGREEMENT
by and among
AFLAC INCORPORATED,
JAPAN POST HOLDINGS CO., LTD.,
J&A ALLIANCE HOLDINGS CORPORATION, in its capacity as trustee of J&A
ALLIANCE TRUST
and
GENERAL INCORPORATED ASSOCIATION J&A ALLIANCE
Dated as of February 28, 2019
Table of Contents
Page
Article I DEFINITIONS 1
Section 1.1 Definitions 1
Section 1.2 Additional Defined Terms 4
Section 1.3 Interpretation and Construction 6
Article II PURCHASE OF COMPANY COMMON STOCK 7
Section 2.1 Purchase of Company Common Stock 7
Section 2.2 Ownership of Company Common Stock 7
Section 2.3 Securities Laws 8
Section 2.4 Acquisition Notice 9
Section 2.5 Preemptive Rights 9
Article III STANDSTILL 11
Section 3.1 Standstill 11
Section 3.2 Standstill Fall-Away 13
Article IV TRANSFERS 13
Section 4.1 Transfer Restrictions 13
Section 4.2 Volume Limitation 14
Section 4.3 Mandatory Transfers 15
Section 4.4 Optional Sale Right 15
Article V REGISTRATION RIGHTS 16
Section 5.1 Registration Rights 16
Article VI GOVERNANCE AND INVESTOR RIGHTS 16
Section 6.1 Voting Agreement 16
Section 6.2 Voting Agreement Fall-Away 17
Section 6.3 Information Rights 17
Article VII REPRESENTATIONS AND WARRANTIES 18
Section 7.1 Representations and Warranties of the Company 18
Section 7.2 Representations and Warranties of the Japan Post Parties 19
Article VIII COVENANTS; COMMITMENTS 20
Section 8.1 Regulatory Matters 20
Section 8.2 Further Assurances 23
Section 8.3 Public Announcements 24
Section 8.4 Material Non-Public Information 25
Section 8.5 Trust Agreement 25
Section 8.6 Confidentiality. 26
Article IX TERMINATION 26
Section 9.1 Termination 26
Section 9.2 Effect of Termination 27
Article X MISCELLANEOUS 27
i
Section 10.1 Notices 27
Section 10.2 Amendment and Waiver 29
Section 10.3 Specific Performance 30
Section 10.4 Section 14-2-732 Agreement 30
Section 10.5 Headings 30
Section 10.6 Severability 30
Section 10.7 Entire Agreement; No Third Party Beneficiaries 30
Section 10.8 Governing Law; Arbitration 30
Section 10.9 Waiver of Sovereign Immunity 33
Section 10.10 Successors and Assigns 34
Section 10.11 Counterparts 34
Schedules
Schedule A Authorized Individuals
Exhibits
Exhibit A Trust Agreement
Exhibit B Basic Agreement
ii
SHAREHOLDERS AGREEMENT
This Shareholders Agreement, dated as of February 28, 2019 (this
“Agreement”), by and among Aflac Incorporated, a Georgia corporation (the “Company”),
Japan Post Holdings Co., Ltd., a Japanese corporation (“Japan Post”), J&A Alliance Holdings
Corporation, a Delaware corporation, solely in its capacity as trustee (the “Trustee”) of J&A
Alliance Trust, a New York voting trust (“J&A Alliance Trust”) and General Incorporated
Association J&A Alliance, a Japanese general incorporated association and the sole
shareholder of the Trustee (the “Trustee Owner”, and together with Japan Post and the
Trustee, the “Japan Post Parties”). The Company, Japan Post, the Trustee and the Trustee
Owner each may be referred to in this Agreement individually as a “Party” and collectively as
the “Parties”.
WHEREAS, immediately prior to the execution of this Agreement, Japan
Post and the Trustee have entered into that certain Trust Agreement, in the form set forth as
Exhibit A attached hereto, whereby J&A Alliance Trust was established;
WHEREAS, prior to the execution of this Agreement, the Company, Aflac
Life Insurance Japan Ltd., a Japanese corporation and an indirect wholly owned subsidiary of
the Company (“Aflac Japan”), and Japan Post entered into that certain Basic Agreement
regarding the “Strategic Alliance Based on Capital Relationship” (the “Basic Agreement”), in
the form set forth as Exhibit B attached hereto (with the English translation thereof);
WHEREAS, in furtherance of the strategic alliance contemplated by the
Basic Agreement, and subject to the terms and conditions of this Agreement, J&A Alliance
Trust desires to acquire ownership of approximately 7% of the outstanding common stock,
par value $0.10 per share, of the Company (the “Company Common Stock”) through open
market or private block purchases by the Trustee or J&A Alliance Trust; and
WHEREAS, in consideration of the benefits to be obtained by the Company
by virtue of the arrangements described above, and in light of the undertakings made by the
Japan Post Parties herein, the Company is willing to cooperate as contemplated by Section 8.1
with J&A Alliance Trust’s acquisition of record ownership of shares of Company Common
Stock in accordance with and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and premises
of this Agreement and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement:
“Activist Hedge Fund” means any Person set forth on a list provided by the
Company to Japan Post prior to the date hereof, which may be periodically updated by the
Company on a reasonable and good faith basis from time to time using substantially the same
criteria.
1
“Affiliate” means, with respect to any Person, any other Person that, directly
or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, such Person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or otherwise, and the
terms “controlled” and “controlling” have correlative meanings.
“Beneficial Ownership” shall be defined consistent with such term’s meaning
under Rule 13d-3 or 13d-5 under the Exchange Act and shall include securities that are
beneficially owned, directly or indirectly, by a Counterparty (or any of such Counterparty’s
Affiliates) under any Derivatives Contract (without regard to any short or similar position
under the same or any other Derivatives Contract) to which such Person or any of such
Person’s Affiliates is a Benefiting Party; provided, however, that the number of shares of
Company Common Stock that a Person is deemed to be the beneficial owner of, or to
beneficially own, in connection with a particular Derivatives Contract shall not exceed the
number of Notional Common Shares with respect to such Derivatives Contract; provided,
further, that the number of securities beneficially owned by each Counterparty (including its
Affiliates) under a Derivatives Contract shall be deemed to include all securities that are
beneficially owned, directly or indirectly, by any other Counterparty (or any of such other
Counterparty’s Affiliates) under any Derivatives Contract to which such first Counterparty (or
any of such first Counterparty’s Affiliates) is a Benefiting Party, with this provision being
applied to successive Counterparties as appropriate. Other terms of similar import shall have
comparable meanings.
“Business Day” means any day (other than a day which is a Saturday, Sunday
or legal holiday in the State of New York) on which banks are open for business in New York,
New York and Tokyo, Japan.
“Company Board” means the board of directors of the Company.
“Company Securities” means (i) any shares of capital stock or other equity
interests of the Company or of any of its Subsidiaries; (ii) any other securities of the Company
or of any of its Subsidiaries granting voting rights; (iii) any warrants, options, convertible or
exchangeable securities, subscriptions, calls or other rights (including any preemptive or
similar rights, but excluding any such rights granted pursuant to this Agreement) to subscribe
for or purchase or acquire any of the securities described in the foregoing clauses (i) and (ii);
or (iv) any security, instrument or agreement granting economic rights based upon the value
of, or the value of which is determined by reference to any of the securities described in the
foregoing clauses (i) through (iii), regardless of whether such security, instrument or
agreement is or may be settled in securities, cash or other assets.
“Derivatives Contract” means a contract between two parties (the “Benefiting
Party” and the “Counterparty”) that is designed to produce economic benefits and risks to the
Benefiting Party that correspond substantially to the ownership by the Benefiting Party of a
number of shares of Company Common Stock specified or referenced in such contract (the
number corresponding to such economic benefits and risks, the “Notional Common Shares”),
regardless of whether obligations under such contract are required or permitted to be settled
through the delivery of cash, shares of Company Common Stock or other property, without
regard to any short position under the same or any other Derivative Contract. For the
avoidance of doubt, interests in broad-based index options, broad-based index futures and
2
broad-based publicly traded market baskets of stocks approved for trading by the appropriate
Governmental Authority shall not be deemed to be Derivatives Contracts.
“Domiciliary Regulators” means (i) the Director of the Nebraska Department
of Insurance, (ii) the Superintendent of the New York State Department of Financial Services,
and (iii) the Commissioner of the Oklahoma Insurance Department; provided, if all United
States insurance company Subsidiaries of the Company domiciled in any one of the foregoing
states redomesticate, merge or otherwise cease to exist as domestic insurers in such state, then
the Commissioner, Superintendent or other insurance regulatory authority in such state shall
no longer be a Domiciliary Regulator.
“Emergency Arbitrator” means an emergency arbitrator appointed by the
SIAC in accordance with the SIAC Rules, as specified in Section 10.8.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Transferee” means (i) any Person who is a competitor of the
Company or any of its Subsidiaries with respect to the sale of cancer insurance or
supplemental health care insurance, as set forth on a list provided by the Company to Japan
Post prior to the date hereof, which may be periodically updated by the Company on a
reasonable and good faith basis from time to time using substantially the same criteria, or any
of such Person’s Affiliates or (ii) any Activist Hedge Fund.
“Governmental Authority” means any supranational, national, federal, state,
provincial or local government, foreign or domestic, or the government of any political
subdivision of any of the foregoing, or any entity, authority, agency, ministry or other similar
body exercising executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other quasi-governmental
entity established by any of the foregoing to perform any of such functions (including any
national securities exchange or the equivalent) with relevant jurisdiction.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvement Act of 1976,
as amended.
“Japan-US Tax Treaty” means the Convention Between the Government of
the United States of America and the Government of Japan for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income as in effect
on the date hereof and any successor convention.
“Japan Post Investment Funds” means any investment funds, trusts (not
including J&A Alliance Trust), pension or other similar investment vehicles or accounts
affiliated with, but not controlled by, Japan Post, or for the benefit or account of Affiliates of
Japan Post but not controlled by Japan Post, solely to the extent that such investments are
made in the ordinary course and Japan Post does not have investment discretion to determine
which securities or assets to purchase or sell on behalf of such vehicle or account or voting
discretion with respect to voting securities held by such vehicles or accounts.
“Law” means any federal, state, provincial, local, domestic or foreign law,
common law, ordinance, code, statute, rule or regulation of any Governmental Authority.
3
“Order” means any order, decision, judgment, writ, injunction, decree, award
or other determination of any Governmental Authority.
“Person” means any individual, corporation, company, voluntary association,
partnership, joint venture, trust, limited liability company, unincorporated organization,
Governmental Authority or any agency, instrumentality or political subdivision thereof or any
other form of entity.
“PII” means any information possessed by the Company, any of its
Subsidiaries or any of its Affiliates with respect to any customer, policyholder, employee or
independent contractor of the Company's U.S. business, which specifically identifies such
individual Person, including any contact information (e.g., address, electronic mail address,
phone number(s)), Social Security Number, and financial account information of such Person;
provided, however, that such Person’s name alone, without being presented, associated, or
stored with any other identifying data element, shall not be deemed PII.
“Pre-Issuance Ownership Percentage“ means J&A Alliance Trust’s
Beneficial Ownership, expressed as a percentage, of the outstanding shares of Company
Common Stock as of immediately prior to the applicable issuance of New Securities.
“Required Regulatory Approvals” means (i) the expiration of any applicable
waiting period under the HSR Act, (ii) the approval of the applicable Domiciliary Regulator
of each respective Form A Filing, (iii) the approval of or confirmation or nondisapproval by
the Japan Fair Trade Commission, (iv) notice to the Japanese Financial Services Agency and
(v) confirmation or nondisapproval by the Japanese Kanto Local Finance Bureau in
connection with the transactions contemplated by this Agreement.
“Restricted Period” means the period beginning on the date on which J&A
Alliance Trust first acquires any shares of Company Common Stock and ending on the earlier
of (i) the date that is the fourth anniversary of the date on which J&A Alliance Trust first
acquires 7% of the outstanding shares of Company Common Stock, (ii) the date that is the
fifth anniversary of the date on which J&A Alliance Trust first acquires 5% of the outstanding
shares of Company Common Stock and (iii) the date that is the tenth anniversary of the date
on which J&A Alliance Trust first acquires any shares of Company Common Stock.
“Securities Act” means the Securities Act of 1933, as amended.
“Standstill Period” means the period commencing on the date J&A Alliance
Trust first acquires any shares of Company Common Stock and ending on the date that the
Standstill Restrictions terminate pursuant to Section 3.2.
“Subsidiary” means, as to any Person, any corporation or other entity of
which: (i) such Person, or a Subsidiary of such Person, is a general partner (if a limited
partnership) or managing member (if an LLC) or; (ii) at least a majority of the outstanding
equity interest having by the terms thereof ordinary voting power to elect a majority of the
board of directors or similar governing body of such corporation or other entity is at the time
directly or indirectly owned or controlled by such Person or one or more of its Subsidiaries.
Section 1.2 Additional Defined Terms. The following terms have the meanings
set forth in the Sections set forth below:
4
Term Section
$ 1.3(a)
10-for-1 Voting 6.3(b)
Acceptance Notice 2.5(b)
Affiliate 1.1
Aflac Japan Recitals
Agreement Preamble
Approved Tender Offer 4.1(a)
Arbitral Tribunal 10.8(b)
Basic Agreement Recitals
Beneficial Ownership 1.1
Benefiting Party 1.1
Board Change of Control 3.2(e)
Business Combination 4.1(a)
Business Day 1.1
Change of Control 3.2(e)
Company Preamble
Company Board 1.1
Company Common Stock Recitals
Company SEC Documents 7.1(f)
Company Securities 1.1
Counterparty 1.1
Daily Volume Limitation 2.1(b)
Decision on Interim Relief 10.8(b)
Domiciliary Regulatory 1.1
Exchange Act 1.1
Excluded Transferee 1.1
Form A Filings 8.1(b)
Fundamental Transaction 3.2(b)
Governmental Authority 1.1
HSR Act 1.1
Interim Relief 10.8(b)
J&A Alliance Trust Preamble
Japan-US Tax Treaty 1.1
Japan Post Preamble
Japan Post Investment Funds 1.1
Japan Post Parties Preamble
Law 1.3(a), 1.1
Laws 1.3(a)
New Securities 2.5(a)
NYSE Rule 2.5(a)
Optional Sale Exercise Notice 4.4(b)(i)
Optional Sale Right 4.4(a)
Optional Sale Shares 4.4(a)
Order 1.1
Outside Date 8.1(a)
Ownership Cap 2.2(a)
Parties Preamble
Party Preamble
Permitted Non-Public Transfer 4.1(b)(i)
Permitted Public Transfer 4.1(b)(ii)
5
Person 1.1
PII 1.1
Preemptive Rights Notice 2.5(b)
Preemptive Rights Shares 2.5(a)
Preferential Rate 8.1(g)
Pre-Issuance Ownership Percentage 1.1
Pre-Notice 2.5(b)
Receiving Party 8.6
Registration Statement 5.1
Representatives 8.6
Required Regulatory Approvals 1.1
Restricted Period 1.1
Rules 10.8(b)
SEC 2.2(b)
Securities Act 1.1
SIAC 10.8(b)
Standstill Restrictions 3.1(l)
Subsequent Offering 4.1(a)
Subsidiary 1.1
Transfer 4.1(a)
Trustee Preamble
Trustee Owner Preamble
U.S. 1.3(a)
Voting Rights Cap 2.2(a)
Section 1.3 Interpretation and Construction.
(a) In this Agreement, except to the extent otherwise provided or that the
context otherwise requires: (i) when a reference is made in this Agreement to an Article,
Section, Schedule or Exhibit, such reference is to an Article or Section of, or a Schedule or
Exhibit to, this Agreement; (ii) the table of contents and headings for this Agreement are for
reference purposes only and do not affect in any way the meaning or interpretation of this
Agreement; (iii) whenever the words “include,” “includes” or “including” are used in this
Agreement, they are deemed to be followed by the words “without limitation”; (iv) the words
“hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement,
refer to this Agreement as a whole and not to any particular provision of this Agreement; (v)
the words “exceed”, “exceeding” and “excess” and words of similar import, when used in this
Agreement with respect to a number of shares of Company Common Stock, shall mean such
number plus one additional share of Company Common Stock; (vi) terms defined in this
Agreement have the defined meanings when used in any certificate or other document made
or delivered pursuant hereto; (vii) the definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms; (viii) references to a Person are also
to its successors and permitted assigns; (ix) the use of “or” is not intended to be exclusive
unless expressly indicated otherwise; and (x) “$” refers to United States (“U.S.”) dollars.
References to “Law”, “Laws” or to a particular statute or Law shall be deemed also to include
such Laws or statutes as such Laws or statutes are from time to time amended, modified or
supplemented, including by succession of comparable successor Laws.
(b) Unless otherwise expressly stated herein, any reference to the Trustee
in this Agreement shall be deemed to refer to the Trustee acting in its capacity as trustee of
J&A Alliance Trust and on behalf of J&A Alliance Trust.
6
(c) The Parties have participated jointly in the negotiation and drafting of
this Agreement and the other agreements, documents and instruments executed and delivered
in connection herewith with counsel sophisticated in investment transactions. If an ambiguity
or question of intent or interpretation arises, this Agreement and the agreements, documents
and instruments executed and delivered in connection herewith shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any provisions of this Agreement and the
agreements, documents and instruments executed and delivered in connection herewith.
ARTICLE II
PURCHASE OF COMPANY COMMON STOCK
Section 2.1 Purchase of Company Common Stock.
(a) Subject to the receipt of all of the Required Regulatory Approvals,
the Trustee shall use commercially reasonable efforts to acquire on behalf of J&A Alliance
Trust, through open market or private block purchases in the U.S., within a period of twelve
(12) months following the date on which J&A Alliance Trust first acquires any shares of
Company Common Stock, Beneficial Ownership of shares of Company Common Stock
representing, in the aggregate, approximately 7% of the outstanding shares of Company
Common Stock; provided, that, for the avoidance of doubt, the Trustee and/or J&A Alliance
Trust may, prior to obtaining all of the Required Regulatory Approvals, begin to purchase
shares of Company Common Stock in an amount up to, but not exceeding, the amount of such
shares J&A Alliance Trust may Beneficially Own under applicable Law prior to receipt of the
relevant Required Regulatory Approvals.
(b) Notwithstanding the foregoing, the Trustee shall not, on any single
day, purchase or otherwise acquire through open market purchases Beneficial Ownership of a
number of shares of Company Common Stock that, in the aggregate, exceeds 15% of the
average daily trading volume of shares of Company Common Stock on the U.S. open markets
during a period of thirty (30) trading days immediately preceding the date of such acquisition
of shares of Company Common Stock, as reported by Bloomberg, L.P. on screen page
“AFL USHP” (or any successor screen page thereto) (the “Daily Volume
Limitation”).
Section 2.2 Ownership of Company Common Stock.
(a) Subject to Section 4.3, J&A Alliance Trust shall not Beneficially
Own shares of Company Common Stock in excess of (i) 10% of the outstanding shares of
Company Common Stock during the Restricted Period and (ii) after the expiration of the
Restricted Period, the greater of (A) 10% of the outstanding shares of Company Common
Stock and (B) shares of Company Common Stock representing 22.5% of the aggregate voting
rights of the outstanding shares of Company Common Stock as of the record date of the most
recent annual or special meeting of the shareholders of the Company (the “Voting Rights Cap”
and, in each case of Clauses (i) and (ii), the “Ownership Cap”); provided, however, that, if,
following the expiration of the Restricted Period, J&A Alliance Trust Transfers a number of
shares of Company Common Stock resulting in its Beneficial Ownership of shares of
Company Common Stock being less than 6% of the outstanding shares of Company Common
Stock, then the Ownership Cap shall thereafter be 10% of the outstanding shares of Company
Common Stock; provided, further, that, for the avoidance of doubt, the foregoing proviso
7
shall not apply in the event that J&A Alliance Trust’s Beneficial Ownership of shares of
Company Common Stock falls below 6% of the outstanding shares of Company Common
Stock as a result of dilutive issuances of shares of Company Common Stock by the Company.
(b) For purposes of this Agreement, unless otherwise expressly stated
herein, all determinations of the amount of outstanding shares of Company Common Stock
shall be based on information set forth in the most recent quarterly or annual report, or the
most recent applicable current report subsequent thereto, filed by the Company with, or
furnished by the Company to, the U.S. Securities and Exchange Commission (the “SEC”),
unless the Company shall have updated such information by delivery of written notice to
Japan Post, the Trustee or J&A Alliance Trust.
(c) For purposes of this Agreement, unless otherwise expressly stated
herein, all determinations of the amount or percentage of J&A Alliance Trust’s voting rights
with respect to the Company Common Stock shall be based on the information provided
pursuant to Section 6.3(b)(ii) in the Company’s most recent Form 8-K.
(d) The shares of Company Common Stock acquired by or on behalf of
J&A Alliance Trust shall be recorded as directly registered shares held by the Trustee in its
capacity as trustee of J&A Alliance Trust on the share register of the Company. Neither Japan
Post nor any of its controlled Affiliates, other than Japan Post Investment Funds, shall at any
time Beneficially Own any shares of Company Common Stock other than as the settlor or
beneficiary of J&A Alliance Trust in accordance with the terms of the Trust Agreement;
provided that, for the avoidance of doubt, for purposes of this Section 2.2(d), none of J&A
Alliance Trust, the Trustee and the Trustee Owner shall be deemed controlled “Affiliates” of
Japan Post.
(e) The Japan Post Parties shall cause any shares of Company Common
Stock acquired by or on behalf of J&A Alliance Trust through a broker to be transferred into
the Trustee’s name, in its capacity as trustee of the J&A Alliance Trust, and recorded as
directly registered shares held by the Trustee in its capacity as trustee of the J&A Alliance
Trust on the books of the Company within ten (10) Business Days of such acquisition and the
Trustee shall maintain such direct registration until any such shares are Transferred in
accordance with this Agreement. The Company shall take all action necessary to cause the
Company’s transfer agent to accept such Company Common Stock and register them in the
name of the Trustee, in its capacity as trustee of the J&A Alliance Trust and to facilitate any
Transfer through facilities of The Depository Trust Company.
Section 2.3 Securities Laws. Each of the Japan Post Parties shall, in the course of
the Trustee’s or J&A Alliance Trust’s acquisition of any shares of Company Common Stock,
comply with all applicable Laws, including pursuant to Section 13(d) of the Exchange Act
and the Financial Instruments and Exchange Act of Japan; provided, that the Japan Post
Parties shall use their reasonable best efforts to provide drafts to the Company, in the case of
United States filings and submissions, and to Aflac Japan, in the case of Japanese filings and
submissions, of any filing to be made with, or written materials to be submitted to, any
Governmental Authority in compliance with such applicable Laws in connection with the
Trustee’s or J&A Alliance Trust’s acquisition of any shares of Company Common Stock, and
the Japan Post Parties shall consider in good faith any comments or views of the Company
thereon; provided, however, that such obligation shall not extend to communications with or
inquiries by any Japanese Governmental Authority that are either (i) primarily related to other
8
matters, or (ii) reasonably expected in the course of ordinary regulatory interaction or required
by such Japanese Governmental Authority to remain confidential.
Section 2.4 Acquisition Notice. As promptly as reasonably practicable following
the end of each calendar month during which J&A Alliance Trust acquires Beneficial
Ownership of any shares of Company Common Stock, Japan Post shall notify the Company
in writing of the number of shares of Company Common Stock so acquired during such
month.
Section 2.5 Preemptive Rights.
(a) If the Company proposes to issue any shares of Company Common
Stock (including issuances of shares of Company Common Stock pursuant to exchangeable or
convertible securities of the Company or other securities exercisable for shares of Company
Common Stock (upon exercise or in accordance with the terms thereof)) or any other
Company Securities carrying voting rights that are entitled to vote together with Company
Common Stock (collectively, “New Securities”), the Trustee shall have the right to purchase,
and J&A Alliance Trust shall have the right to acquire, up to such number of shares of
Company Common Stock that would allow J&A Alliance Trust to maintain Beneficial
Ownership of the issued and outstanding shares of Company Common Stock, after giving
effect to the issuance of the applicable New Securities, that is no less than J&A Alliance
Trust’s Pre-Issuance Ownership Percentage (such shares, the “Preemptive Rights Shares”);
provided, however, that (subject to Section 2.5(g), below) the Trustee shall not have this
purchase right, and J&A Alliance Trust shall not have this acquisition right, to the extent that
an issuance of the Preemptive Rights Shares to J&A Alliance Trust would require approval of
the shareholders of the Company pursuant to Rule 312 of the New York Stock Exchange
Listed Company Manual or any successor rule thereof (the “NYSE Rule”), unless such
shareholder approval is obtained. Notwithstanding the foregoing, to the extent the Company
issues securities, other than Company Common Stock, that are exchangeable for, or
convertible into, or otherwise exercisable for, shares of Company Common Stock, the Trustee
shall only be entitled to exercise its right to purchase Preemptive Rights Shares pursuant to
this Section 2.5 concurrently with, or as promptly as practicable following, the issuance of the
shares of Company Common Stock underlying such securities.
(b) In the case of an issuance of New Securities which are exchangeable
for, or convertible into, or otherwise exercisable for, shares of Company Common Stock, the
Company shall, prior to or concurrently with such issuance of New Securities, deliver a
written notice to the Trustee (the “Pre-Notice”) (i) stating the Company’s intention to issue
such securities, (ii) stating the amount of such securities that the Company proposes to issue
in the aggregate and, correspondingly, the number of Preemptive Rights Shares that the
Trustee could be entitled to purchase and J&A Alliance Trust could be entitled to acquire in
the future, (iii) informing the Trustee that it may have a future right to elect to purchase such
Preemptive Rights Shares, which right shall be exercisable upon delivery of a Preemptive
Rights Notice (defined below) and (iv) stating the price of such Preemptive Rights Shares
based on the issuance price of such New Securities (or if such prices are not clearly
identifiable, the formula for determining the price upon exchange, conversion or exercise or,
if no such formula is available, such effective price per share as is reasonably determined by
the Company in good faith). The Company shall provide the right contemplated by Section
2.5(a) to the Trustee and J&A Alliance Trust by delivering a written notice to the Trustee (the
“Preemptive Rights Notice”) stating (i) in the case of an issuance of Company Common
Shares, (x) the Company’s intention to issue New Securities, (y) the amount of such New
9
Securities that the Company proposes to issue in the aggregate and, correspondingly, the
number of Preemptive Rights Shares that the Trustee is entitled to purchase and J&A Alliance
Trust is entitled to acquire and (z) the price of such New Securities (or (1) if such prices are
not clearly identifiable, such effective price per share as is reasonably determined by the
Company in good faith or (2) in the case of issuances of restricted stock, the fair market value
of such restricted stock as determined by the Company in the ordinary course in connection
with such issuance) and (ii) in the case of an issuance of Company Common Stock upon the
exchange, conversion, or exercise of New Securities described in a Pre-Notice, the amount of
such securities that will or have been exchanged, converted or exercised for Company
Common Stock and the resulting number of Preemptive Rights Shares that the Trustee is
entitled to purchase and J&A Alliance Trust is entitled to acquire. Within ten (10) Business
Days following the delivery of the Preemptive Rights Notice by the Company to the Trustee,
the Trustee may, by delivery of a written notice of acceptance to the Company (the
“Acceptance Notice”), elect to purchase all, or any portion, of the Preemptive Rights Shares
that the Trustee is then entitled to purchase and J&A Alliance Trust is then entitled to acquire
pursuant to this Section 2.5 for the price (or the price determined by application of any
applicable formula) indicated in the Pre-Notice or the Preemptive Rights Notice, as applicable.
The delivery of the Acceptance Notice shall be evidence of the Trustee’s irrevocable
commitment to purchase the number of Preemptive Rights Shares indicated in the Acceptance
Notice for the price indicated in the Pre-Notice or the Preemptive Rights Notice, as applicable,
and the consummation of the sale and purchase of the Preemptive Rights Shares shall occur
concurrently with or as promptly as practicable following the Company’s issuance of the
corresponding New Securities.
(c) Notwithstanding anything in this Section 2.5 to the contrary, if the
amount of New Securities to be issued is for any reason less than the amount that was initially
proposed to be issued as indicated in the Preemptive Rights Notice, the Company may
(whether before or after the Trustee has delivered an Acceptance Notice to the Company)
decrease the number of Preemptive Rights Shares that the Trustee is entitled to purchase and
J&A Alliance Trust is entitled to acquire pursuant to this Section 2.5 to an amount not less
than the amount necessary to allow J&A Alliance Trust to maintain (but not exceed) its
Pre-Issuance Ownership Percentage after giving effect to the issuance of the applicable New
Securities.
(d) Notwithstanding anything in this Section 2.5 to the contrary, if the
amount of New Securities to be issued is for any reason greater than the amount that was
initially proposed to be issued as indicated in the Preemptive Rights Notice, the Trustee may,
by delivery of an Acceptance Notice (whether or not the Trustee has previously delivered an
Acceptance Notice to the Company), increase the number of Preemptive Rights Shares it
elects to purchase and J&A Alliance Trust elects to acquire pursuant to this Section 2.5 to an
amount not less than the amount necessary to allow J&A Alliance Trust to maintain (but not
exceed) its Pre-Issuance Ownership Percentage after giving effect to the issuance of the
applicable New Securities.
(e) Notwithstanding anything in this Section 2.5 to the contrary, Section
2.5(a) shall not apply, and the Company shall have no obligation to sell, and the Trustee shall
have no right to purchase from the Company and J&A Alliance Trust shall have no right to
acquire, any shares of Company Common Stock or any other securities of the Company, if the
Company proposes to issue New Securities:
10
(i) pursuant to any employee benefits or other compensation
plan approved by the Board and the shareholders of the Company;
(ii) in connection with any acquisition by the Company, whether
by merger, consolidation, acquisition of assets, sale or exchange of stock, other
business combination or otherwise, in each case, pursuant to which any such New
Securities are being issued as consideration therefor;
(iii) upon any stock dividend, stock split or other pro rata
distribution, subdivision or combination of securities or other recapitalization of the
Company;
(iv) pursuant to any direct stock purchase and dividend
reinvestment plan (or any similar successor plan) of the Company; or
(v) pursuant to the terms of a “poison pill” or other similar
shareholder rights plan approved by the Board.
(f) Upon the Company’s issuance of any Preemptive Rights Shares, such
Preemptive Rights Shares shall be (i) validly issued, fully paid and nonassessable and (ii) duly
authorized by all necessary corporate action of the Company.
(g) In the event that the Company proposes an issuance of New
Securities and the full number of Preemptive Rights Shares that would be issued to the
Trustee and J&A Alliance Trust pursuant to Section 2.5(a) in connection with such issuance
of New Securities would exceed the amount that the Company could issue to the Trustee and
J&A Alliance Trust without shareholder approval pursuant to the NYSE Rule (a “Shareholder
Approval Issuance”), the Company shall use its reasonable best efforts to obtain approval for
such Preemptive Rights Shares by the shareholders of the Company for the issuance to J&A
Alliance Trust of the Preemptive Rights Shares (it being understood that no Shareholder
Approval Issuance will be conditioned on the receipt of approval for issuance to J&A
Alliance Trust of the applicable Preemptive Rights Shares); provided, that, if shareholder
approval of the issuance to J&A Alliance Trust is not obtained, the applicable number of
Preemptive Rights Shares shall automatically be decreased to one share of Company
Common Stock less than as would require shareholder approval pursuant to the NYSE Rule.
ARTICLE III
STANDSTILL
Section 3.1 Standstill. During the Standstill Period, except with the prior written
consent of, or waiver by, the Company or otherwise pursuant to approval by the Company
Board, none of the Japan Post Parties shall, or shall permit any of its controlled Affiliates,
other than Japan Post Investment Funds, to, directly or indirectly, alone or in concert with any
Person, solicit, encourage, participate in or facilitate, or enter into any agreement,
arrangement or understanding with, any Person in connection with, or engage in:
(a) the acquisition of, or the obtaining (other than as a result of acts or
omissions taken solely by (i) the Company, such as share repurchases, or (ii) any third party,
such as Transfers of shares resulting in the loss of voting rights) of any economic interest in,
any right to direct the voting or disposition of, or any other right with respect to, any
11
securities of the Company (including shares of Company Common Stock or other Company
Securities) in excess of the Ownership Cap or other obligations or any assets of the Company
or any of its Subsidiaries;
(b) any tender or exchange offer for securities of the Company
(including shares of Company Common Stock or other Company Securities) or any of its
Subsidiaries, or any merger, consolidation, business combination or acquisition or disposition
of all or substantially all assets of the Company or any of its Subsidiaries, other than by the
Trustee voting J&A Alliance Trust’s shares of Company Common Stock in accordance with,
or as permitted by, Section 6.1;
(c) solicit or support any offers to acquire the Company, other than by
the Trustee voting J&A Alliance Trust’s shares of Company Common Stock in accordance
with, or as permitted by, Section 6.1;
(d) any other actions that would, or would reasonably be expected to,
result in, or lead to, a Change of Control, other than by the Trustee voting J&A Alliance
Trust’s shares of Company Common Stock in accordance with, or as permitted by, Section
6.1;
(e) any recapitalization, restructuring, liquidation, dissolution or other
similar extraordinary transaction with respect to the Company or any of its Subsidiaries;
(f) forming, joining or in any way participating in a “partnership, limited
partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) for purposes of acquiring, holding, voting or disposing of any
securities of the Company;
(g) disposition of any shares of Company Common Stock in response to
an unsolicited tender or exchange offer for securities of the Company or other proposed offer
or business combination, except as otherwise permitted by Section 4.1;
(h) the nomination for election, or election, of any individual as a
director of the Company or any Affiliate of the Company, or the proposal, formally or
informally, of any individual as a director of the Company or any Affiliate of the Company,
other than by (i) the Trustee voting J&A Alliance Trust’s shares of Company Common Stock
in accordance with, or as permitted by, Section 6.1 or (ii) recommending to the Corporate
Governance Committee of the Company Board a candidate for nomination as a director of the
Company in accordance with the procedures set forth in the Company’s most recent proxy
statement on Schedule 14A filed with the SEC related to an annual meeting of the Company’s
shareholders;
(i) any other action or activity in support of controlling or changing the
Company Board, other than by the Trustee voting J&A Alliance Trust’s shares of Company
Common Stock in accordance with, or as permitted by, Section 6.1;
(j) any proposal or action in respect of the Company by any Activist
Hedge Fund to change or influence the business, operations, governance, plans or direction of
the Company, other than by the Trustee voting J&A Alliance Trust’s shares of Company
Common Stock in accordance with, or as permitted by, Section 6.1;
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(k) a public announcement regarding any of the types of matters set forth
in this Section 3.1 or any action (including any public announcement or communication with
or to the Company) that would reasonably be expected to require the Company to make a
public announcement regarding any of the types of matters set forth in this Section 3.1; or
(l) any act or proposal to seek to amend or obtain a waiver of any of the
foregoing (the restrictions set forth in the foregoing clauses (a) through (l), the “Standstill
Restrictions”);
provided, that none of the Standstill Restrictions shall prevent, restrict, encumber or limit in
any manner the Japan Post Parties or any of their controlled Affiliates from exercising their
respective rights, performing their respective obligations or otherwise consummating the
transactions contemplated by this Agreement (including the right of J&A Alliance Trust to
acquire, vote, Beneficially Own or Transfer shares of Company Common Stock) or the Basic
Agreement, in each case, in accordance with the terms and provisions hereof and thereof.
Section 3.2 Standstill Fall-Away. The Standstill Restrictions shall terminate upon
the occurrence of any of the following events:
(a) any Person is or becomes the Beneficial Owner, directly or indirectly,
of voting securities of the Company representing more than 50% of the combined voting
power of the Company’s then outstanding voting securities;
(b) the Company consummates a merger, consolidation, share exchange
or other similar transaction (a “Fundamental Transaction”) with any other Person, other than a
Fundamental Transaction in which the voting securities of the Company that are outstanding
immediately prior to such Fundamental Transaction continue to represent (either by
remaining outstanding or by being converted into voting securities of the surviving or parent
entity) at least a majority of the combined voting power immediately after such Fundamental
Transaction of (i) the Company’s outstanding securities or (ii) the surviving or parent entity’s
outstanding securities;
(c) the security holders of the Company approve a plan of complete
liquidation or winding-up of the Company;
(d) the sale or disposition (in one transaction or a series of related
transactions) of all or substantially all of the Company’s assets is consummated; or
(e) a change of a majority of the membership of the Company Board
(excluding any change approved by a majority of the directors serving on the Company Board
prior to such change) (a “Board Change of Control”) (each event set forth in the foregoing
clauses (a) through (e) occurring after the date of this Agreement, with respect to the
Company, shall constitute a “Change of Control”).
ARTICLE IV
TRANSFERS
Section 4.1 Transfer Restrictions.
(a) Without the Company’s prior written consent, which consent shall
not be unreasonably withheld, the Trustee shall not, and shall cause J&A Alliance Trust not to,
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directly or indirectly, sell, transfer, assign, hypothecate, pledge, encumber, grant a security
interest in or otherwise dispose of (whether by operation of law or otherwise) (each, a
“Transfer”) any Company Securities or any right, title or interest therein or thereto; provided,
however, that the Trustee and J&A Alliance Trust may, subject to Section 4.1(b), without the
Company’s prior written consent, Transfer Company Securities (i) at any time during the
Restricted Period to the extent that J&A Alliance Trust would, after giving effect to such
Transfer, maintain Beneficial Ownership and record ownership of at least 7% of the
outstanding shares of Company Common Stock, (ii) at any time during the Restricted Period
if the Basic Agreement has been previously terminated in accordance with its terms (unless
the Basic Agreement was terminated pursuant to Section 1(2) of Article 9 thereof as a result
of Japan Post’s non-performance thereunder), (iii) at any time after the Restricted Period, (iv)
at any time pursuant to an Approved Tender Offer or a Subsequent Offering (each as
hereinafter defined) or (v) at any time following a Change of Control; provided, further, that,
for the avoidance of doubt, a merger, amalgamation, plan of arrangement or consolidation or
similar business combination transaction (“Business Combination” in which Japan Post is a
constituent corporation (or otherwise a party including, for the avoidance of doubt, a
transaction pursuant to which a Person acquires all or a portion of Japan Post, whether by
tender or exchange offer, by share exchange, or otherwise) shall not be deemed to be a
“Transfer” of any Company Securities or any right, title or interest therein or thereto. For
purposes of this Agreement: “Approved Tender Offer” shall mean a tender offer or Business
Combination relating to outstanding shares of Company Common Stock that has been
approved or recommended by the Company Board; and “Subsequent Offering” shall mean
any subsequent offering period of a completed tender offer for at least a majority of the
outstanding shares of Company Common Stock by any third party so long as a majority of the
outstanding shares of Company Common Stock have been previously tendered to such third
party and are not subject to withdrawal. For the avoidance of doubt, Japan Post shall have
the right to pledge its beneficial interest in J&A Alliance Trust to a controlled Affiliate in
connection with any financing related to the purchase of Company Common Stock, subject to
any applicable regulatory requirements and such pledgee agreeing to be fully bound by all of
the terms and conditions of this Agreement and the Trust Agreement in the event that such
pledgee forecloses on its lien on such beneficial interest in J&A Alliance Trust.
(b) In respect of any Transfer permitted by clauses (i), (ii) or (iii) of
Section 4.1(a), such Transfer shall:
(i) not involve any block trade to an Excluded Transferee or that
would result in a Transfer by the Trustee or J&A Alliance Trust of Company
Securities (on a fully-diluted basis) representing more than 4% of the outstanding
shares of Company Common Stock to any Person and its Affiliates or any “group” (as
such term is used in Section 13(d)(3) of the Exchange Act) (a “Permitted Non-Public
Transfer”); or
(ii) subject to Section 4.2, be to the general public that is effected
through a public stock exchange or electronic market based within the U.S. pursuant
to (A) Rule 144 (if then applicable) or under any successor rule thereof under the
Securities Act or (B) the Registration Statement (a “Permitted Public Transfer”).
Section 4.2 Volume Limitation. Notwithstanding anything in this Article IV to
the contrary, J&A Alliance Trust shall not, without the Company’s prior written consent,
Transfer pursuant to a Permitted Public Transfer, on any single day, a number of shares of
Company Common Stock that, in the aggregate, exceeds the Daily Volume Limitation.
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Section 4.3 Mandatory Transfers. If, at any time, including as a result of any
share repurchase program or self-tender or otherwise, J&A Alliance Trust Beneficially Owns
shares of Company Common Stock in excess of the Ownership Cap, then the Trustee shall
use its reasonable best efforts, or use its reasonable best efforts to cause J&A Alliance Trust,
to within ninety (90) days of first obtaining knowledge that J&A Alliance Trust’s Beneficial
Ownership of shares of Company Common Stock exceeds the Ownership Cap, Transfer such
number of shares of Company Common Stock pursuant to Permitted Non-Public Transfers or
Permitted Public Transfers as shall be necessary to reduce J&A Alliance Trust’s Beneficial
Ownership and the Trustee’s (in its capacity as trustee of J&A Alliance Trust) record
ownership of shares of Company Common Stock to the Ownership Cap, subject to all of the
terms and conditions of this Article IV; provided that the provision in Section 4.2 shall not
apply to any such Transfer. Notwithstanding the foregoing, from and after the Restricted
Period and in the event that the Voting Rights Cap is applicable, any Transfer required
pursuant to this Section 4.3 shall be subject to the Company’s first providing written notice to
J&A Alliance Trust setting forth, to the knowledge of the Company, J&A Alliance Trust’s
Beneficial Ownership of shares of Company Common Stock in excess of the Ownership Cap,
including the basis of such determination, and a ten (10) Business Day period following the
date of such notice during which the Trustee and J&A Alliance Trust may dispute the
Company’s assertion that the Ownership Cap has been exceeded by presenting evidence to
the Company to the contrary, which the Company shall consider in good faith, and if at the
end of such ten (10) Business Day period, the Trustee and J&A Alliance Trust have not
presented any such evidence or after the presentation of any such evidence, the Company
reaffirms by written notice to the Trustee that J&A Alliance Trust Beneficially Owns shares
of Company Common Stock in excess of the Ownership Cap, the Trustee shall, and shall
cause J&A Alliance Trust to, Transfer such shares of Company Common Stock as required by
this Section 4.3 (provided, that the ninety (90)-day Transfer period set forth in this Section 4.3
shall begin on the date of such subsequent written notice).
Section 4.4 Optional Sale Right.
(a) In the event that the Basic Agreement has been terminated in
accordance with its terms (unless the Basic Agreement was terminated pursuant to Section
1(2) of Article 9 thereof as a result of the Company’s or Aflac Japan’s non-performance
thereunder), the Company shall have the right, but not the obligation (the “Optional Sale
Right”), to require the Trustee to Transfer all of J&A Alliance Trust’s shares of Company
Common Stock in excess of 4% of the outstanding shares of Company Common Stock (such
number of shares of Company Common Stock, the “Optional Sale Shares”) in accordance
with Section 4.4(b) and subject to all of the terms and conditions of Article IV.
(b) Optional Sale Procedures.
(i) If the Company desires to require the Trustee to Transfer
J&A Alliance Trust’s Optional Sale Shares pursuant to the Optional Sale Right, the
Company shall deliver to the Trustee a written notice (the “Optional Sale Exercise
Notice”) within ten (10) Business Days following the termination of the Basic
Agreement exercising the Optional Sale Right and specifying the number of Optional
Sale Shares. Delivery of the Optional Sale Exercise Notice shall be deemed a
waiver of the provisions of Section 4.2 with respect to the Optional Sale Shares.
(ii) The Japan Post Parties shall use their reasonable best efforts
to cause all of the Optional Sale Shares to be Transferred within a period of twelve
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(12) months following receipt by the Trustee of the Optional Sale Exercise Notice
pursuant to Permitted Public Transfers or Permitted Non-Public Transfers.
ARTICLE V
REGISTRATION RIGHTS
Section 5.1 Registration Rights. Not later than the Outside Date, the Company
shall file a shelf registration statement on Form S-3 (the “Registration Statement”) registering
the resale of Company Common Stock held by J&A Alliance Trust and cause it to become
effective and remain effective, including through the filing of a subsequent Form S-3 if such
initial filing has expired, until such time as J&A Alliance Trust no longer holds any shares of
Company Common Stock. Sales under the Registration Statement will be subject to the
Company’s blackout periods set forth in the Company’s insider trading policy or otherwise
implemented by the Company with respect to all persons subject to the Company’s insider
trading policy by written notice to the Japan Post Parties. For the avoidance of doubt, (i) the
Company will not be required to cooperate or otherwise facilitate an underwritten offering by
Japan Post unless requested by Japan Post in order to comply with the provisions of Section
4.4 and Section 8.1(a) hereof and (ii) the Registration Statement shall be in the form
determined by the Company; provided that the Company shall provide Japan Post with a draft
of such Registration Statement and any amendment thereto prior to the filing thereof, and
shall include in such Registration Statement a “Plan of Distribution” section as provided by
Japan Post. Any filing fees or reasonable and documented out-of-pocket expenses
(excluding legal and accounting fees incurred in connection with the initial filing of the
Registration Statement) incurred by the Company in connection with the Registration
Statement and reasonably attributable to the Japan Post Parties will be reimbursed by Japan
Post.
ARTICLE VI
GOVERNANCE AND INVESTOR RIGHTS
Section 6.1 Voting Agreement.
(a) The Trustee shall cause each of the shares of Company Common
Stock Beneficially Owned by J&A Alliance Trust to be present in person or represented by
proxy at any meeting of the shareholders of the Company for the purpose of determining the
presence of a quorum at such meeting.
(b) The Trustee shall at all times vote the shares of Company Common
Stock Beneficially Owned by J&A Alliance Trust with respect to any action, proposal or
matter to be voted on by the shareholders of the Company (including through action by
written consent), including the election or removal of any director of the Company Board, in a
manner consistent with the spirit of the strategic alliance contemplated by the Basic
Agreement and with due regard to the views and recommendations of the Company Board.
(c) Notwithstanding Section 6.1(b), the Trustee shall (i) with respect to
any shares of Company Common Stock Beneficially Owned by J&A Alliance Trust
representing voting rights exceeding 20% of the aggregate voting rights represented by the
outstanding shares of Company Common Stock, vote such excess shares of Company
Common Stock, in connection with any action, proposal or matter to be voted on by the