The Board of Director candidate recommended by Effissimo has submitted the following questionnaire

TOKYO, July 15, 2020 /PRNewswire/ -- On February 14th 2020, Toshiba Corporation ("Toshiba" hereafter) disclosed a release titled "Notice Regarding Results of the Investigation of Suspicious Transactions at a Subsidiary, and Recurrence Prevention Measures". The press release disclosed the fictitious round-tripping transactions discovered and investigation ("Investigation" hereafter) conducted at Toshiba IT-Services Corporation ("TSC" hereafter") and Toshiba Digital Solutions Corporation ("TDSL" hereafter).

To that end, the response by Toshiba as it pertains to this problem, and the views and opinions of the board would be a vital piece of information in order to understand how Toshiba's medium-to long-term corporate value would be improved. Moreover, this would also be an invaluable piece of information for shareholders as they each decide how to exercise their voting rights at the Ordinary General Meeting of Shareholders for the 181st Fiscal Year.

Therefore, as a nominee for director, I kindly ask you the below four questions, taking into light the "Principles for Responding to Corporate Scandals" cited at the very end of this letter, which are referred to as the bible in responses to corporate scandals.

Given the purpose of this inquiry, I kindly ask that the board respond to the below questions.

For the avoidance of doubt this letter is being furnished solely by myself, completely independent to the proposing shareholder of resolution number 4, or other nominees for director. Furthermore, it shall be noted that in order to convey useful information to shareholders, I may choose to disclose this letter and the corresponding responses from the board at my sole discretion.

Question 1: Establishing the necessary and sufficient investigative scope.

The Investigation states that the investigative scope was the, "fact pertaining to the Transactions and other transactions similar to the Transactions (including the actual existence of the subject matter at TSC and TDSL group companies) and the principal involvement and awareness of TSC officers and employees if the Transactions were illusory and circular," "accounting method in the consolidated financial statements of Toshiba in the foregoing cases," and "causes and the allocation of responsibility for the conduct of the Transactions, and considered the measures to prevent recurrence of the Transactions." (p2 of the Investigation Report (Summary) English translation, I. Summary of Investigation, 4(3) Investigation Target).

However, the biggest concern for Toshiba shareholders would be the below items.

  • For the four years from November 2015, when the fictitious round-tripping transactions were commenced, to November 2019, when the said transactions were discovered by an examination by the Tokyo Regional Taxation Bureau, how did Toshiba's subsidiary management systems and group internal control systems function as it pertains to TSC and TDSL?
  • Why was Toshiba unable to 'prevent' the start of these fictitious round-tripping transactions at TSC in November 2015, a time when it was in the midst of responding to its last round of accounting malfeasance?
  • Why was Toshiba unable to 'discover' these fictitious round-tripping transactions over four years, across 26 incidents, representing 43.5 billion JPY in sales, and 1.8 billion JPY in gross profit. Why was Toshiba unable to 'discover' them itself, until it was subject to an examination by the Tokyo Regional Tax Bureau?
  • What were the problems of Toshiba's subsidiary management systems and group internal control systems that caused it to fail in 'preventing' and 'discovering' these fictitious round-tripping transactions at TSC?

It seems to be the case that these concerns are outside the scope of the Investigation.  In fact, there was no investigation on these matters.

Please answer if the board has determined that it has "established the necessary and sufficient investigative scope," in spite of the fact that the scope set forth by Toshiba's Investigation has excluded the above-mentioned concerns.  Furthermore, to the extent that the board has indeed determined that to be the case, please explain the reasoning as to why the board has determined that to be the case.

Question 2: Identifying the root causes of the scandal.

The Investigation identifies the causes to be: "deficiencies in internal rule provisions and operations," "inadequate internal checks," "reliance on individual as general manager of public sector sales division," "failure of crisis consciousness and justification at TSC regarding performance of the Transactions," and "motives and justification for the Manager's work related to the Transactions." (p7-8 of the Investigation Report (Summary) English translation, IV. Cause Analysis).

However, these are all causes limited to TSC. The biggest concern for Toshiba shareholders would be the point below, to which no underlying causes have been identified.

  • What were the problems of Toshiba's subsidiary management systems and group internal control systems that caused it to fail in 'preventing' and 'discovering' these fictitious round-tripping transactions at TSC?

Please answer if the board has determined that it has "identified the root causes of the scandal," in spite of the cause analysis done by Toshiba's Investigation that has failed to identify the causes underlying such concern.  Furthermore, to the extent that the board has indeed determined that to be the case, please explain the reasoning as to why the board has determined that to be the case.

Question 3: Setting effective measures to prevent recurrence that directly address the root causes.

The Investigation recommends as measures to prevent recurrence: "restrictions on direct delivery transactions," "preparation and strict enforcement of internal rules," "enhanced check functions," "prevention of reliance on individuals through regular personnel rotation," "enhancing officer and employee training," and "revising internal evaluation system," (p9-10 of the Investigation Report (Summary) English translation, V. Proposal to Prevent Recurrence).

However, these are all measures to prevent recurrence at TSC and TDSL. The biggest concern for Toshiba shareholders would be the below, to which no effective measures to prevent recurrence that directly addresses the root causes are provided.

  • What were the problems of Toshiba's subsidiary management systems and group internal control systems that caused it to fail in 'preventing' and 'discovering' these fictitious round-tripping transactions at TSC?

Please answer if the board has determined that the Investigation's recommended measures to prevent recurrence are "effective measures to prevent recurrence that directly addresses the root causes." Furthermore, to the extent that the board has indeed determined that to be the case, please explain the reasoning as to why the board has determined that to be the case.

Question 4: Establishment of the "Compliance Advisory Meeting."

Only July 8th 2020, Toshiba newly established the "Compliance Advisory Meeting" as a measure to prevent recurrence of the fictitious round-tripping transactions at TSC.  Measures to prevent recurrence are sought to be "highly effective policies that directly address the root causes of the issue."  Please answer as to what the board has identified as the root causes, that the newly established "Compliance Advisory Meeting" could address.

 

 

February 24th 2016

Japan Exchange Regulation, Self-Regulating Body of Japan Exchange Group, Inc.

 

Principles for Responding to Corporate Scandals

~Recovering Corporate Value~

 

     If a company recognizes a scandal or has concerns about a potential scandal pertaining to its corporate activities (or those of its group companies), the company needs to exercise a "self-cleaning" process by conducting a necessary and sufficient factual investigation into the matter and identify the root causes of the problem, and using its findings to implement measures for preventing the problem from recurring. In doing so, a listed company is expected to conduct itself and take action in accordance with the Principles so that it can quickly restore the credibility from its stakeholders and recover its corporate value.

 

Principle 1: Identifying the root causes of the scandal.

     In working to identify the root causes of a scandal, a company should first establish the necessary and sufficient investigative scope (Question 1) and then go beyond simply examining phenomena and listing causal relationships on a superficial level. A proper investigation entails looking closely at the deeper contextual background of the problem, finding hard facts, and delineating the fundamental causes at the heart of the scandal. (Question 2)

 

(… omitted…)

 

Principle 3: Formulating and swiftly implementing effective measures to prevent recurrence.

     To prevent a scandal from recurring, a company should formulate highly effective policies that directly address the root causes of the issue (Question 3) (Question 4) and implement them swiftly and steadily.

 

(rest omitted.)

 

Contacts
Please reach out to any of the contacts below with any questions or inquiries regarding the matters set out in this statement.

VOX Global Japan K.K.
Minoru Koshida
Minoru.Koshida@voxglobalasia.com
TEL: 080-2208-9698

Rie Sugiyama
Rie.Sugiyama@voxglobalasia.com
TEL: 080-2042-2852

 

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