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Enforcement Order of the Limited Partnership Act for Investment 1998 - Cabinet Order No. 235 of 1998

# This English translation of Enforcement Order of the Limited Partnership Act for Investment has been translated (through the revisions of Act No. 173 of 2004 (Effective April 30, 2004)) in compliance with the Standard Bilingual Dictionary (March 2006 edition). This is an unofficial translation. Only the original Japanese texts of acts and regulations have legal effect, and the translations are to be used solely as reference material to aid in the understanding of Japanese acts and regulations. The Government of Japan shall not be responsible for the accuracy, reliability or currency of the legislative material provided in this Website, or for any consequence resulting from use of the information in this Website. For all purposes of interpreting and applying act to any legal issue or dispute, users should consult the original Japanese texts published in the Official Gazette.

Enforcement Order of the Limited Partnership Act for Investment (Cabinet Order No. 235 of 1998)

Article 1 (Bonds Equivalent to Bond with Share Options)

The bonds to be prescribed by Cabinet Order pursuant to Article 3(1)(ii) of the Limited Partnership Act for Investment (Act No. 90 of 1998. Hereinafter the "Investment LPS Act") shall be those that a person, who issues share options, offers and allocates together with said share options.

Article 2 (Designated Securities)

The securities to be prescribed by Cabinet Order pursuant to Article 3(1)(iii) of the Investment LPS Act as contributing to the procuring of capital by an Enterprise shall be the following:

(i) The bonds prescribed in the Securities and Exchange Act (Act No. 25 of 1948) Article 2(1)(iv) (excluding bond with share options, etc., as prescribed in the Investment LPS Act Article 3(1)(ii) (hereinafter simply "Bond with Share Options, Etc."));

(ii) Promissory notes as set forth in the Securities and Exchange Act Article 2(1)(viii); and

(iii) Rights that are to be represented in securities as prescribed in the preceding two clauses, that are deemed to be securities pursuant to Securities and Exchange Act Article 2(2).

Article 3 (Period of Holding of Specified Designated Securities)

The period to be prescribed by Cabinet Order pursuant to Article 3(1)(iii) of the Investment LPS Act shall be six months.

Article 4 (Period of Holding of Specified Monetary Claims)

The period to be prescribed by Cabinet Order pursuant to Article 3(1)(iv) of the Investment LPS Act shall be six months.

Article 5 (Specified Small and Medium Sized Enterprises, Etc.)

A person to be prescribed by Cabinet Order pursuant to Article 3(1)(vii) of the Investment LPS Act shall be any of the following persons:

(i) A business corporation which is a Small or Medium Sized Enterprise (meaning a person as set forth in each item of Article 2(1) of the Small and Medium Sized Enterprise Basic Act (Act No. 154 of 1963). The same shall apply in (ii) below) or other business corporation that is covered by any of the following, which is not listed on a securities exchange as prescribed in the Securities Exchange Act Article 2(16), and is a business corporation which issues share that are not registered in the registry of OTC traded securities as prescribed in Article 75(1) of said act:

(a) The amount of capital is not more than 500 million yen;

(b) The number of employees serving full time is not more than 1,000;

(c) The total amount stated in the liabilities section of its final balance sheet is not more than 20 billion yen;

(d) If the ratio of the amount set forth in (1) below to the amount set forth in (2) below exceeds three percent in the previous business year:

1. the total of the testing and research expenses as well as the development expenses set forth in Article 14(1)(v) of the Juridical Person Tax Act Enforcement Order (Order No. 97 of 1965); and

2. the balance of total income minus income from transfer of fixed assets, or securities as prescribed in Article 2(xxi) of the Juridical Person Tax Act (Act No. 34 of 1965).

(e) An entity (i) of which less than one year has passed since its incorporation, (ii) which has at least two full time researchers, and (iii) of which the number of full time researchers is at least 10 percent of the total of full time officers and employees thereof.

(ii) A incorporated general partnership (gomei kaisha), incorporated limited partnership (goshi kaisha), a limited liability company (yugen kaisha) or an individual which constitutes a small or medium sized enterprise; or

(iii) a company partnership (kigyo kumiai) or a cooperative partnership (kyogyo kumiai).

Article 6 (Ratio of Capital Investment for Investment Partnership Into One Investment Partnership, Etc. or Investment Manager)

The ratio to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 3(1)(ix) shall be 50/100.

Article 7 (Person Who Is in the Position of Having Substantial Control Over the Execution of the Business of an Investment LPS)

(1) An Investment Partnership, Etc., to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 3(1)(ix)(a) shall be any of the following:

(i) An Investment Partnership, Etc., in which a person who holds a majority of the votes of all shareholders in a business corporation that is the general partner in an Investment LPS (or one of the general partners if there is more than one general partner. The same shall apply hereinafter) executes the business thereof; or

(ii) An Investment Partnership, Etc., in which a person who holds the majority of the votes of all equity members of a limited liability company that is the general partner in an Investment LPS executes the business thereof.

(2) The persons to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 3(1)(ix)(b) shall be a person prescribed below:

(i) a person who holds a majority of the votes of all shareholders in a business corporation that is the general partner in an Investment LPS; or

(ii) a person who holds a majority of the votes of all equity members of a limited liability company that is a general partner in an Investment LPS.

Article 8 (Ancillary Business)

The business activities to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 3(1)(x) shall be the business of engaging in the purchase, sale, exchange or lease, or broking or mediation of, real estate or movable property in which a security interest is created in respect of rights that are represented by Designated Securities as prescribed in Article 3(1)(ii) thereof or monetary claims as prescribed in Article 3(1)(iv) thereof (which in the case that the objective of the security interest is land shall include neighboring land to said land, and in the event that the object of the security interest is a building shall include the land and neighboring land on which said building is located).

Article 9 (Acquiring Shares Issued by a Foreign Juridical Person, Etc.)

The business activities set forth in the Investment LPS Act Article 3(1)(xi) shall be conducted as set forth in the Partnership Agreement, limited to an extent in which the total of the price of the investment pursuant to Article 3(1)(ix) thereof plus the price of the acquisition set forth in Article 3(1)(xi)(a) thereof as well as the investment pursuant to Article 3(1)(xi)(b) thereof does not exceed 50/100 of the total capital contribution of all partners.

Article 10 (Manner of Investment of Surplus Cash)

The manner to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 3(1)(xii) shall be the following:

(i) Deposits with banks or other financial institutions, or postal savings;

(ii) Acquisition of Japanese government bonds, municipal bonds or bonds guaranteed by the government (meaning bonds for which the government guarantees payment of the principal and interest) or issued by a bank or other financial institution;

(iii) Acquisition of bonds issued by a juridical person that is incorporated under a special act (excluding those bonds set forth in the preceding clause);

(iv) Monetary trusts in a bank that engages in the trust business, or a trust company;

(v) Acquiring beneficiary certificates in investment trusts or loan trusts;

(vi) Acquiring monetary claims that are represented by any of the following documents:

(a) Negotiable certificates of deposit; and

(b) Promissory notes as set forth in Securities and Exchange Act Article 2(1)(viii) (limited to those that are Specified Designated Securities as set forth in Investment LPS Act Article 3(1)(iii)).

(vii) Acquiring bonds that a foreign government, local government, international institution, foreign government affiliated institution (meaning an institution in which the main equity investor is the government of the country in which the head office or principle office of the institution is located), a juridical person in which a local government of a foreign country is the main equity investor, or a foreign bank or other financial institution issues or guarantees the debts thereof.

Article 11 (Total Number of Partners)

The number to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 3(4) shall be 100 individuals; provided, however, that in a specified partnership as prescribed in Investment LPS Act Article 6-2(1) (which in Article 13 is referred to simply as a "Specified Partnership") the number of partners other than qualified institutional investors (meaning qualified institutional investors as set forth in Article 2(3)(i) of the Securities and Exchange Act. The same shall apply to Article 13(i) hereof) shall not exceed 49 individuals.

Article 12 (Business of Acquiring Shares, Etc. of Unlisted Small or Medium Sized Enterprises)

The business to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 6-2(1) shall be the following:

(i) Acquiring and holding of shares issued by joint share companies (limited to a specified small and medium sized enterprise, etc., as prescribed in Investment LPS Act Article 3(1)(vii) (hereinafter "Specified SME, Etc." The same shall apply to the following clause)) upon their establishment as well as acquiring and holding of equity shares of a limited liability company (limited to a Specified SME, Etc. The same shall apply to the following clause) or a company partnership upon their establishment;

(ii) Acquiring and holding of shares, share options or Bond with Share Options, Etc., issued by a business corporation, or equity shares issued by a limited liability company or a company partnership;

(iii) Acquiring and holding of shares, share options, and Bond with Share Options, Etc. issued by a business corporation (excluding a Specified SME, Etc. The same shall apply to clause (ix)) in which the Investment LPS (hereinafter referred to in this Article (excluding clause (xii)) as "Partnership") holds shares, share options, and Bond with Share Options, Etc. of the business corporation or an equity interest in a limited liability company (excluding a Specified SME, Etc. The same shall apply to clause (ix)) in which the Partnership holds an equity interest, pursuant to the preceding two clauses;

(iv) In the event that a Share Held Company (meaning a business corporation, etc. (meaning a business corporation or a limited liability company. The same shall apply hereinafter in this clause, the following clause and clause (viii)) in which the Partnership holds shares, share options or Bond with Share Options, Etc., or an equity share pursuant to the three preceding clauses. The same shall apply hereafter.) ceases to exist as a result of a merger-acquiring and holding shares or equity shares allocated by the surviving company (meaning a business corporation, etc., that survives after the merger or a business corporation, etc., that is incorporated as a result of the merger, and is neither a Specified SME, Etc., nor a Share Held Company. The same shall apply in the following clause) or share options or Bond with Share Options, Etc., in respect of which the surviving company (limited to a business corporation) has assumed the obligation thereof;

(v) If a Share Held Company transfers its business to a successor company (meaning a business corporation, etc., incorporated as a result of an incorporation-type split, or a business corporation, etc., that assumes the business as a result of an absorption-type corporate Split, and is neither a Specified SME, Etc. nor a Share Held Company. The same to apply in the following clause) as a result of a corporate separation -acquiring and holding of shares or equity shares that the successor company allocates to shareholders of the Share Held Company at the time of the corporate separation, or share options or Bond with Share Options, Etc. in respect of which the successor company (limited to a business corporation) has assumed the obligation thereof;

(vi) If a Share Held Company (limited to a business corporation. The same shall apply to the following clause) becomes a Wholly Owned Subsidiary (meaning a wholly owned subsidiary as set forth in Commercial Code (Act No. 48 of 1899) Article 352(1). The same shall apply in clause (viii)) as a result of a share-for-share exchange or a share transfer-the acquiring and holding of shares that the Specified Wholly Owning Parent Company (meaning the business corporation that becomes a wholly owning parent company (meaning a wholly owning parent company as set forth in said paragraph. The same shall apply hereinafter in this clause) through the exchange of shares or the wholly owning parent company incorporated through the transfer of shares and which is a business corporation other than a Specified SME, Etc. or a Share Held Company. The same shall hereinafter apply in this clause) allocates as a result of the exchange of shares or the transfer of shares, or the share options in respect of which the Specified Wholly Owning Parent Company has assumed the obligation thereof;

(vii) Making of new cash loans to a Share Held Company, Etc. (meaning a Share Held Company or a company partnership in which the Partnership holds an equity interest. The same shall apply hereinafter in this clause) and the holding of monetary claims in connection with said loans;

(viii) In the event of monetary claims that the Partnership holds pursuant to the preceding clause, the holding of monetary claims, the obligations of which, in the event the Share Held Company disappears as a result of a merger, the surviving company (meaning a business corporation, etc., that survives after the merger, or a business corporation, etc., incorporated as a result of the merger, that is other than a Share Held Company) assumes, or in the event a successor company (meaning a business corporation, etc. that is incorporated as a result of an incorporation-type split or a business corporation, etc. that assumes the business as a result of an absorption-type corporate Split, that is other than a Share Held Company. The same shall apply hereinafter in this clause) assumes the business pursuant to a corporate separation, the successor company assumes, or those against a Wholly Owned Subsidiary in the event that the Share Held Company (limited to a business corporation) becomes the Wholly Owned Subsidiary as a result of an exchange of share or a transfer of share;

(ix) Acquiring and holding of industrial property rights or copyrights held by a Specified SME, Etc. or a business corporation or a limited liability company as prescribed in clause (iii) (including granting a license to use the rights relating thereto);

(x) Acquiring and holding of equity investment in an Anonymous Partnership (tokumei kumiai) Agreement (meaning an anonymous partnership agreement under Article 535 of the Commercial Code. The same shall apply hereinafter) of which a party is a Specified SME, Etc. (other than a person who engages in the investment business) or trust beneficial rights (limited to rights to receive distributions of earnings or profits arising from a business carried on by a Specified SME, Etc.);

(xi) Provision of management-related advice or technical guidance to a Specified SME, Etc. in which the Partnership owns shares, equity interest, share options, Bond with Share Options, Etc., monetary claims, industrial property, copyrights or trust beneficial rights pursuant to any of the preceding clauses;

(xii) The following business activities conducted in the manner set forth in the partnership agreement, to the extent that there is no hindrance to the conduct of business activities set forth in each of the preceding clauses, and limited to an extent in which the total of the price of acquisition as set forth in (a) below and the capital investment as set forth in (b) below is less than 50/100 of the total capital contribution of all partners:

(a) Acquiring and holding of shares, share options, Bond with Share Options, Etc., and similar instruments that are issued by a foreign juridical person whose share that it issues is not listed on a share exchange as set forth in Securities and Exchange Act Article 2(16) or a similar exchange located in a foreign country, and is not registered in the OTC traded securities registry as prescribed in Article 75(1) of said act or a similar registry located in a foreign country.

(b) Investment in an Investment LPS or a partnership formed by a partnership agreement as set forth in Civil Code (Act No. 89 of 1896) Article 667(1) that promises to carry on the investment business or similar organization located in a foreign country that is similar to one of these partnerships, or equity investment pursuant to an anonymous partnership in which the other party is a person carrying on the investment business.

(xiii) Investment of surplus cash to be made in a manner listed below in order to accomplish the purposes of the Partnership Agreement:

(a) deposits with banks or other financial institutions, or postal savings;

(b) Acquisition of Japanese government bonds, municipal bonds or bonds guaranteed by the government (meaning bonds for which the government guarantees payment of the principal and interest) or issued by a bank or other financial institution;

(c) Acquisition of bonds issued by a juridical person that is incorporated under a special act (excluding those bonds set forth in the preceding clause);

(d) Monetary trusts in a bank that engages in the trust business, or a trust company;

(e) Acquiring beneficiary certificates in investment trusts or loan trusts;

(f) Acquiring monetary claims that are represented by negotiable certificates of deposit as well as promissory notes set forth in Securities Exchange Act Article 2(1)(viii); and/or

(g) Acquiring bonds that a foreign government, local government, international institution, foreign government affiliated institution (meaning an institution in which the main equity investor is the government of the country in which the head office or principle office of the institution is located), a juridical person in which a local government of a foreign country is the main equity investor, or a foreign bank or other financial institution issues or guarantees the debts thereof.

Article 13 (Persons Qualified to Be a Partner of a Specified Partnership)

The persons to be prescribed by Cabinet Order pursuant to Investment LPS Act Article 6-2(1) shall be persons covered by the following:

(i) Qualified institutional investors;

(ii) Companies with a total capital or contribution investment of at least 100 million yen;

(iii) Partnerships formed by a partnership agreement as prescribed in Civil Code Article 667(1) that promises to carry on the investment business (limited to partnerships in which all of the partners are persons as set forth in the preceding clauses or the following clause through clause (vii)) as well as proprietors in connection with an anonymous partnership agreement (limited to persons who carry on the investment business and for whom all persons who make equity investments pursuant to an anonymous partnership for the purpose of the investment business with the other party as the proprietor are listed in the preceding two clauses as well as the next clause through clause (vii));

(iv) An educational institution set forth in Article 4(iii) and (v) of the Private Educational Institutions Act (Act No. 270 of 1949);

(v) A person who is equivalent to a person set forth in any of the preceding clauses under an act or regulation of a foreign country;

(vi) An association in a foreign country that is similar to an Investment LPS;

(vii) The Japan Small and Medium Enterprise Corporation; or

(viii) An officer or employee of the juridical person in the event that such juridical person is a general partner of the Specified Partnership.