TENDER OFFER AGENCY AND BUSINESS HANDLING AGREEMENT (TOB #2) November 7, 2014 Solar Japan Holdings G.K. SMBC Nikko Securities Inc.
TENDER OFFER AGENCY AND BUSINESS HANDLING AGREEMENT (TOB #2) Solar Japan Holdings G.K. (the Tender Offeror ) and SMBC Nikko Securities Inc. (the Tender Offer Agent ) hereby enter into an agreement (this Agreement ) as follows regarding a tender offer of the Target Shares and Other Securities set out in Item (1) of Article 1 of this Agreement (the Tender Offer ) made by the Tender Offeror to the shareholders and the holders of stock acquisition rights (such persons, Target Company Security Holders ) of Starbucks Coffee Japan, Ltd. (the Target Company ), which would be a tender offer made by a person other than the issuer as prescribed in Articles 27-2 and thereafter of the Financial Instruments and Exchange Law (the Law ). The Tender Offer is the second step of a two-step tender offer that Tender Offeror will make to the shareholders and the holders of stock acquisition rights of the Target Company. Article 1 Purpose of the Tender Offer The Tender Offeror intends to effect the Tender Offer under the following general terms: (1) Class of Shares and Other Securities to be Purchased: (a) (b) Shares of common stock of the Target Company (the Target Shares ); Stock acquisition rights issued pursuant to the resolutions of the annual shareholders meeting of the Target Company held on June 24, 2005 and the board of directors meeting of the Target Company held on June 24, 2005 (the Forth Series of Target Stock Acquisition Rights ). Target Shares and Forth Series of Target Stock Acquisition Rights are hereinafter referred to as the Target Shares and Other Securities. (2) Number of Target Shares to be Purchased: 30,375,500 shares (Target Stock Acquisition Rights are converted into a certain number of Target Shares pursuant to Paragraph 1 of Article 27-3 of the Law and Article 9-6 of the Cabinet Order on Disclosure of a Tender Offer for Share Certificates, etc. by a Person other than an Issuer) (3) Purchase Price: (a) (b) 1,465 yen per Target Share 115,850 yen per Target Stock Acquisition Right 2
(4) Tender Offer Period: From November 10, 2014 to December 22, 2014; provided, however, that the tender offer period may be extended in compliance with applicable laws and regulations, and that the last day of such period is hereinafter referred to as the Tender Offer Expiration Date. If the Tender Offeror is to extend the tender offer period, it shall consult with the Tender Offer Agent in advance. (5) Commencement Date of Settlement for the Tender Offer: December 29, 2014, or a date to be determined separately if the tender offer period is extended. Such date is hereinafter referred to as the Settlement Commencement Date. If the Tender Offeror is to delay the Settlement Commencement Date, it shall consult with the Tender Offer Agent in advance. (6) Other Terms and Conditions: The Tender Offer will be effected in accordance with the terms and conditions of the tender offer registration statement (the Tender Offer Registration Statement ) prescribed in Paragraph 2 of Article 27-3 of the Law, which shall include the terms and conditions set out in this Agreement. Article 2 Tender Offer Agency and Entrustment of the Tender Offer Business (1) The Tender Offeror entrusts the Tender Offer Agent to purchase the Target Shares and Other Securities on behalf of the Tender Offeror and to perform the business prescribed in Paragraph 4 of Article 27-2 of the Law and other services relating to the Tender Offer (the Entrusted Business ) in accordance with the provisions of this Agreement, and the Tender Offer Agent accepts such entrustment. (2) The Tender Offeror acknowledges that the Tender Offer Agent, who is the agent for the Tender Offer, may also take certain procedures in connection with the tendering in the Tender Offer as a Target Company Security Holder, and the Tender Offeror approves such actions. (3) The Tender Offeror acknowledges that the Tender Offer Agent, who is the agent for the Tender Offer, may also take certain procedures in connection with the 3
tendering in the Tender Offer as a standing agent of a Target Company Security Holder who resides outside Japan, and the Tender Offeror approves such actions. Article 3 Description of the Entrusted Business The Entrusted Business consists of the following: (1) Delivery to the Target Company Security Holders who intend to tender in the Tender Offer (the Tendering Security Holders ) the tender offer explanatory statement relating to the Tender Offer pursuant to Article 27-9 of the Law (the Tender Offer Explanatory Statement ); (2) Acceptance of tenders of the Target Shares from the Tendering Security Holders in the Tender Offer (such Target Shares tendered are hereinafter referred to as the Tendered Shares ) ( Tendered Shares and together with Target Stock Acquisition Rights tendered by the Tendering Security Holders being hereinafter collectively referred to as the Tendered Shares and Other Securities ) and reception of documents delivered by the Tendering Security Holders to the Tender Offer Agent in connection with the Tender Offer, subject to the condition that the Target Shares held by the Tendering Security Holders are recorded on their respective accounts opened at the Tender Offer Agent); (3) Acceptance of tenders of the Target Stock Acquisition Rights from the Tendering Security Holders in the Tender Offer and reception of certificates of stock acquisition rights representing Target Stock Acquisition Rights and requests for approval of transfer of stock acquisition rights, both of which are issued by the Target Company upon request of the Tendering Security Holders (collectively, the Stock Acquisition Rights Certificates and Related Documents ); (4) Keeping orders for tender of the Tendered Shares in the state of execution under the Tender Offer Agent s order control system (such state is hereinafter referred to as the Tendered Status ), and (i) not making transfers from the accounts of the Tendering Security Holders that were opened at the Tender Offer Agent and (ii) maintaining the Tendered Status until the Tendered Status of the Tendered Shares is cancelled pursuant to Item (6) or (9) of this Article or the Tendered Shares are recorded in the Tender Offeror s account opened at the Tender Offer Agent pursuant to Item (7) of this Article; 4
(5) Keeping the Stock Acquisition Rights Certificates and Related Documents received pursuant to Item (3) of this Article in safe custody until they are returned to the Tendering Security Holders pursuant to Item (6) or (9) of this Article or they are delivered to the Tender Offeror pursuant to Item (7) of this Article; (6) Receiving notices of cancellation by the Tendering Security Holders of agreements pertaining to the Tender Offer, and cancelling without delay thereafter the Tendered Status of the Tendered Shares to be cancelled, pursuant to Article 27-12 of the Law, and returning the Stock Acquisition Rights Certificates and Related Documents received from the Tendering Security Holders and kept in safe custody pursuant to Item (5) of this Article to the relevant Tendering Security Holders; (7) Receiving the funds to be remitted by the Tender Offeror pursuant to Article 8 of this Agreement, and on the Settlement Commencement Date recording the Tendered Shares to be purchased by the Tender Offeror in the Tender Offeror s account opened at the Tender Offer Agent and delivery of the Stock Acquisition Rights Certificates and Related Documents relating to the Target Stock Acquisition Rights to be purchased by the Tender Offeror to it; (8) Paying the Tendering Security Holders on the Settlement Commencement Date, subject to the funds being remitted by the Tender Offeror pursuant to Article 8 of this Agreement, the amount equal to the aggregate purchase price of the Tendered Shares and Other Securities to be purchased, less amounts of withholding tax, if necessary under laws and regulations; (9) If the Tender Offeror withdraws its offer and cancels agreements pertaining to the Tender Offer on or before the Tender Offer Expiration Date pursuant to Paragraph 1 of Article 27-11 of the Law and Article 14 of the Financial Instruments and Exchange Law Enforcement Order, assisting in arranging for public announcement by the Tender Offeror of those matters, including withdrawal of the offer made in the Tender Offer, required to be publicly announced under laws and regulations, cancelling without delay the Tendered Status of the Tendered Shares that shall not be purchased and completing the procedures of returning the Stock Acquisition Rights Certificates and Related Documents received from the Tendering Security Holders and kept in safe custody pursuant to Item (5) of this Article to the relevant Tendering Security Holders ; 5
(10) Making arrangements for a public announcement by the Tender Offeror on the day immediately following the Tender Offer Expiration Date of the number of the Target Shares and Other Securities tendered, the number of the Target Shares and Other Securities to be purchased, the method of settlement, the Settlement Commencement Date and other matters; (11) Preparing and sending to each Tendering Security Holder, without delay after the Tender Offer Expiration Date, a notification relating to the purchase through a tender offer of the Tendered Shares and Other Securities tendered by such Tendering Security Holder pursuant to Paragraph 5 of Article 27-2 of the Law and Paragraph 5 of Article 8 of the Financial Statements and Exchange Law Enforcement Order; (12) Notifying the Target Company Security Holders of the details of the Tender Offer during the tender offer period, to the extent reasonable; (13) Receiving materials relating to classes and numbers of certificates of stock acquisition rights representing Target Stock Acquisition Rights and other information, and crosschecking the certificates of the Target Stock Acquisition Rights to be purchased with the materials. It should be noted, however, that Tender Offer Agent is not obligated to execute any other research and confirmation other than such crosschecking; (14) Conducting any business prescribed in this Agreement as a business to be conducted by the Tender Offer Agent on behalf of the Tender Offeror; and (15) Taking any action required to be taken by the Tender Offer Agent in connection with the Entrusted Business under laws and regulations and rules of any financial instruments exchanges or the Japan Securities Dealers Association. Article 4 Representations and Covenants of the Tender Offeror The Tender Offeror hereby represents to and covenants with the Tender Offer Agent that: (1) It shall, in accordance with laws and regulations, prepare and file with the Director of Kanto Local Finance Bureau the Tender Offer Registration Statement, the tender offer cancellation statement and the tender offer report (including any amendments thereto, regardless of whether required under laws or regulations) and also prepare and deliver to the Tender Offer Agent, copies of the Tender Offer Explanatory Statement, the public notices and the public announcements (including any amendments thereto, regardless of whether required under laws or regulations), and shall conduct the Tender Offer and any 6
related transactions in compliance with laws and regulations (whether of Japan or otherwise) applicable to the Tender Offer; (2) It shall promptly furnish to the Tender Offer Agent, at the cost of the Tender Offeror, copies of documents prepared or filed by the Tender Offeror pursuant to the preceding item (including the Tender Offer Explanatory Statement and any amendments thereto, and including documents prepared by the Tender Offeror with the Tender Offer Agent s assistance) in such numbers as required by the Tender Offer Agent to a reasonable extent; (3) In case of any change in the tender offer period or the Settlement Commencement Date, it shall notify the Tender Offer Agent of such change pursuant to Article 7 of this Agreement, and take all necessary steps in compliance with laws and regulations; (4) Whether or not the Tender Offer is executed or completed, the Tender Offer Registration Statement, the tender offer cancellation statement, the tender offer report, the Tender Offer Explanatory Statement or the public notices (including any amendments thereto), the public announcements (including press releases) and other materials for public announcement prepared or approved by the Tender Offeror with respect to the Tender Offer, and any other materials which may be furnished by the Tender Offeror to the Tender Offer Agent in connection with the Tender Offer, shall be prepared in accordance with laws and regulations, and none of them shall contain any untrue statement or description of a material fact or omit to state any material fact required to be stated or described therein or necessary to make the statements or descriptions therein not misleading; (5) It shall duly obtain resolutions of the board of directors and perform other internal procedures that must be obtained and performed by the Tender Offeror under applicable laws and regulations and general organizational documents such as articles of incorporation; (6) If there occurs an event that may affect the Tender Offer with respect to the Tender Offeror, or it comes to know of the occurrence of an event that may affect the Tender Offer with respect to the Target Company before the completion of the settlement of the Tender Offer, it shall promptly give notice to the Tender Offer Agent; and (7) It shall provide to the Tender Offer Agent materials relating to the Target Company that have been obtained through means that are appropriate under 7
laws and regulations where such provision is necessary to conduct the Entrusted Business. Article 5 Covenant of the Tender Offer Agent (1) The Tender Offer Agent hereby covenants with the Tender Offeror that it shall conduct the Entrusted Business with the care of a good manager in accordance with the terms and provisions of this Agreement and the statements made in the Tender Offer Registration Statement and the Tender Offer Explanatory Statement and in compliance with laws and regulations and rules of any financial instruments exchanges and the Japan Securities Dealers Association. (2) Notwithstanding the preceding paragraph, if anyone other than the Tender Offeror conducts a tender offer with respect to the Target Shares and Other Securities during the tender offer period, the Tender Offeror may notify information relating to the commencement of such tender offer to the Target Company Security Holders through such means as the Tender Offeror deems appropriate. Article 6 Report of the State of the Tender Offer (1) The Tender Offer Agent shall report to the Tender Offeror the status of the tenders by the Tendering Security Holders in the Tender Offer from time to time, as appropriate or at any time upon the request of the Tender Offeror, throughout the tender offer period. (2) In addition to the reports provided for in the preceding paragraph, the Tender Offer Agent shall promptly submit to the Tender Offeror reports with respect to such matters as may be reasonably requested by the Tender Offeror in connection with the performance of the Entrusted Business. (3) The Tender Offer Agent shall, throughout the tender offer period, not disclose to any third party other than the Tender Offeror, without the prior approval of the Tender Offeror, information and other matters relating to the Tender Offer, unless the disclosure is required by the request of governmental agencies or self-regulatory organizations such as courts, the Ministry of Finance, the Financial Services Agency, the Securities and Exchange Surveillance Commission, any financial instruments exchanges or the Japan Securities Dealers Association or under laws and regulations. 8
Article 7 Notices by the Tender Offeror The Tender Offeror shall promptly inform the Tender Offer Agent if it intends to withdraw its offer and cancel agreements pertaining to the Tender Offer or to change any term or condition of the Tender Offer, or there occurs any event which requires that the Tender Offer Registration Statement, the Tender Offer Explanatory Statement or the public notice of commencement of the Tender Offer be amended under laws or regulations. Article 8 Remittance of Funds for Purchase The Tender Offeror shall remit, in Japanese currency, by wire transfer to a bank account to be designated by the Tender Offer Agent, no later than noon in the day immediately preceding the Settlement Commencement Date (or, where such day is not a bank business day, the immediately preceding bank business day; the same applies hereinafter), in immediately available funds, an amount equal to the total number of the Target Shares and Other Securities to be purchased by the Tender Offeror in accordance with the Tender Offer multiplied by the purchase price set out in Item (3) of Article 1 of this Agreement. The Tender Offeror shall bear the fees and expenses for such remittance, and shall not deduct the fees and expenses for such remittance from the amount to be remitted pursuant to this Article. Article 9 Fees and Commissions The Tender Offeror shall pay the Tender Offer Agent the fees and commissions to be determined separately by the Tender Offer Agent and the Tender Offeror with the amount equal to the consumption tax (including local consumption tax), if applicable, for performance of the Entrusted Business. The payment of such amount shall be made in Japanese currency by wire transfer to a bank account to be designated by the Tender Offer Agent no later than the day as agreed between the Tender Offer Agent and the Tender Offeror in immediately available funds. Article 10 Reimbursement of Expenses In addition to the fees and commissions set out in Article 9, the Tender Offeror shall pay the Tender Offer Agent, promptly upon its request, the following reasonable expenses to be incurred by the Tender Offer Agent in connection with the Tender Offer, regardless of whether the Tender Offer is executed: (1) Any and all costs and expenses incurred by the Tender Offer Agent in relation to the preparation, printing, public notice and public announcement of any and all documentation required to be conducted by the Tender Offer Agent under this Agreement including the Tender Offer Explanatory Statement; 9
(2) Expenses in connection with mailings sent to the Tendering Security Holders; and (3) Such other expenses as may be incurred by the Tender Offer Agent upon the Tender Offeror s request. Article 11 Indemnification (1) If the Tender Offer Agent fails to perform its obligations under this Agreement due to its willful misconduct or negligence, the Tender Offer Agent shall, regardless of whether the Tender Offer is executed or completed, indemnify the Tender Offeror from and against any and all losses, damages and expenses (including reasonable attorney s fees and associated legal expenses; the same applies in this Article) suffered or incurred by the Tender Offeror as a result of such failure; provided, however, that if the failure is due to the simple negligence (Kei Kashitsu) of the Tender Offer Agent, then the amount of indemnification to be paid by the Tender Offer Agent is limited to the amount equivalent to the fees and commissions for the Tender Offer provided in the Tender Offer Registration Statement and actually received by the Tender Offer Agent. (2) If the Tender Offer Agent performs its obligations under this Agreement but the Tender Offer Agent nevertheless causes losses, damages or expenses to the Tender Offeror due to the willful misconduct or gross negligence (Jyu Kashitsu) of the Tender Offer Agent, the Tender Offer Agent shall indemnify the Tender Offeror for such losses, damages and expenses. (3) The Tender Offeror shall, regardless of whether the Tender Offer is executed or completed, indemnify the Tender Offer Agent from and against (i) any and all losses, damages and expenses suffered or incurred by the Tender Offer Agent as a result of any untrue statement of a material fact contained in the Tender Offer Registration Statement, the Tender Offer Explanatory Statement or any public notice or public announcement (including press releases) given or made by the Tender Offeror in connection with the Tender Offer, or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading (excluding as a result of the Tender Offer Agent s willful misconduct or gross negligence), (ii) any and all losses, damages and expenses suffered or incurred by the Tender Offer Agent as a result of the Tender Offeror s failure to satisfy its obligations under this Agreement due to its willful misconduct or negligence, (iii) any and all losses, damages and expenses 10
suffered or incurred by the Tender Offer Agent as a result of a breach by the Tender Offeror of, or failure of the Tender Offeror to comply with, any law or regulation applicable to the Tender Offer, or (iv) any and all losses, damages and expenses suffered or incurred by the Tender Offer Agent as a result of a Tender Offeror s breach of any representation or covenant in this Agreement. Article 12 Notice and Cooperation for Legal Action (1) If (i) a party to this Agreement (the Indemnified Party ) becomes aware of the occurrence of any event which would entitle the Indemnified Party to indemnification under the provisions of Article 11 or (ii) any legal action or other judicial proceedings are brought against the Indemnified Party by any person, other than the other party to this Agreement (the Indemnifying Party ), in connection with this Agreement, the Indemnified party shall promptly notify an Indemnifying Party thereof in writing; provided, however, that even if the Indemnified Party fails to give such notice to an Indemnifying Party, such Indemnifying Party will not be relieved from its obligations to the Indemnified Party under Article 11 except for its obligation with respect to any loss, damage or expense suffered by or incurred by the Indemnified Party as a result of such failure to notify such Indemnifying Party. (2) In the case of (ii) of the preceding paragraph and upon the request of the Indemnified Party, the Indemnifying Party shall promptly extend to the Indemnified Party such cooperation (including, without limitation, the provision of evidentiary materials, but the Tender Offer Agent will not be obliged to provide information concerning its customers to the Tender Offeror) as may be necessary for the Indemnified Party to conduct the defense thereof. (3) The Tender Offeror shall pay all of the expenses for legal action or other judicial proceedings in connection with the Tender Offer unless such expenses result directly from the Tender Offer Agent s failure to satisfy its obligations under this Agreement. Article 13 Exemption of the Tender Offer Agent The Tender Offer Agent will not be liable for any damage or expense incurred by the Tender Offeror where, in performing the Entrusted Business, after making investigations within the ordinary scope of business with respect to the validity or completeness of, or attribution of rights with respect to, the Tendered Shares and Other Securities, the Tender Offer Agent has handled any matter on its belief that any Tendered Shares and Other Securities, any applicant for transfer of the Tendered Shares recoded under the book-entry system, or any holder of Stock 11
Acquisition Rights Certificates are true, and it is later found that it or they are not true. Article 14 Conditions of Performance of this Agreement The Tender Offer Agent shall perform or continue to perform obligations set forth in this Agreement subject to the following conditions: (1) The Tender Offeror is not in default of its obligations under this Agreement and any agreements relating to this Agreement; and (2) The representations and covenants made by the Tender Offeror under Article 4 of this Agreement are true and accurate and complied with. Article 15 Unprescribed Matters Should there arise any matter not provided for in this Agreement or any question as to the interpretation of the terms of this Agreement, the Tender Offeror and the Tender Offer Agent shall consult with each other in good faith and resolve the same. Article 16 Cancellation If any of the following events occurs, the Tender Offer Agent may terminate this Agreement upon notice to the Tender Offeror (including notice by facsimile): (1) If the Tender Offeror fails to remit the funds for purchase pursuant to the provisions of Article 8 of this Agreement; or (2) If the Tender Offeror breaches its obligations under this Agreement and such breach is not cured within the period designated by the Tender Offer Agent. Article 17 Survival Period Articles 11, 12 and 13, this Article and the following Article shall continue to be in force during the period from the date of execution of this Agreement for 10 years after the Commencement Date of Settlement. Article 18 Governing Law and Court of Jurisdiction (1) This Agreement shall be governed by and interpreted in accordance with, the laws of Japan. (2) Any disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Tokyo District Court in the first instance. 12