Chapter II Reporting and Public Announcement of Public Tender Offer |
| Article 7 | Any public tender offer to purchase the securities of a public company shall not be made until after a report has been filed with the FSC and a public announcement made, except under the circumstances set forth in Subparagraphs 1 to 3 of Paragraph 2 of Article 43-1 of the Act.
For any competitive public tender offer for securities issued by the same public company, a report of public tender offer shall be filed with the FSC and a public announcement made at least five trading days prior to the expiry date of the original public tender offer period.
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| Article 7-1 | An Offeror shall adopt uniform acquisition conditions in the public tender offer, and may not make any of the following modifications to the acquisition conditions:
- Lower the public tender offer price.
- Lower the proposed number of securities to be acquired through the public tender offer.
- Shorten the public tender offer period.
- Other particulars as prescribed by the FSC.
The Offeror may not change the time, manner, or place for payment of tender offer consideration as specified in the prospectus, provided that this restriction does not apply in the event of a natural disaster or emergency event. The occurrence and cessation of an above-mentioned event shall be determined and announced by the relevant competent authorities pursuant to relevant laws and regulations.
The Offeror may not enter into an agreement or covenant with any specific shareholder of the subject company entitling the shareholder to obtain any special rights after the shareholder's participation in the tender through an offer to sell, so that there might exist any discrepancy in the substantial acquisition conditions among shareholders.
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| Article 8 | Consideration, other than cash, for public tender offers shall be confined to within the following scope:
- Domestic securities that are either listed on a stock exchange or traded on an OTC market pursuant to the provisions of the Act; the scope of foreign securities [eligible as consideration] shall be as separately prescribed by the FSC.
- If the Offeror is a public company, stocks or bonds offered and issued thereby; if the Offeror is a foreign company, the scope of stocks or bonds offered and issued thereby [eligible as consideration] shall be as separately prescribed by the FSC.
- Other property of an Offeror referred to in the preceding subparagraph.
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| Article 9 | Before the commencement date of the public tender offer, the Offeror, unless buying back its own shares under Article 28-2 of the Act, shall file a report with the FSC, including the Public Tender Offer Report Form and the following documents, in accordance with Article 7:
- Public tender offer prospectus.
- The mandate contract entered into between the Offeror and the mandated institution pursuant to Article 15 of these Regulations.
- The power of attorney to the Offeror's designated representative for litigious and non-litigious matters if the Offeror does not maintain any domicile or business place in the Republic of China (ROC).
- An appraisal opinion by an independent expert of the reasonableness of the cash price calculation or share exchange ratio of the public tender offer consideration.
- If the public tender offeror is a company, the minutes of the shareholders meeting or directors meeting at which it was resolved to initiate the tender offer or to offer and issue stocks or corporate bonds as the consideration.
- Other documentation required by the FSC.
The Public Tender Offer Report Form and accompanying documents must be reviewed by a lawyer and the lawyer shall issue a legal opinion. If the public tender offer requires approval by or effective registration with the FSC or any other competent government authority, a lawyer's opinion shall concurrently be issued thereto.
The Offeror shall provide proof that it has the ability to perform payment of the tender offer consideration and a written undertaking that it bears the obligation to perform.
If the tender offer consideration is to be cash, the proof under the preceding paragraph shall include one of the items in the following subparagraphs:
- A performance guarantee issued by a financial institution that designates the mandated institution as the beneficiary, and that authorizes the mandated institution to demand in its sole discretion the exercise of the performance guarantee and instruct the allocation of funds for the purpose of payment of the consideration.
- Written confirmation that the Offeror has the ability to perform payment of the tender offer consideration, issued by a financial adviser with the qualification of a securities underwriter or by a CPA that conducts the business of auditing and attesting the financial reports of public companies, after such CPA or adviser has gained a full understanding of the Offeror and taken reasonable steps to evaluate the Offeror's sources of funds.
If domestic securities that are listed on a stock exchange or traded on an OTC market are used as consideration for the public tender offer, the proof under paragraph 3 shall include the items in each of the following subparagraphs:
- Written confirmation issued by the mandated institution that the securities to be used as consideration for the public tender offer have already been transferred to the book-entry depository account opened by the Offeror at the mandated institution.
- Written confirmation that, before the expiration of the public tender offer period, the securities to be used as consideration may not be transferred to any other person or transferred out of the account.
If the public tender offer is a public company that is using stocks or corporate bonds offered and issued by it as consideration for the public tender offer, the proof to be submitted under paragraph 3 shall be as set out in paragraph 4 or the preceding paragraph.
The financial adviser or CPA under subparagraph 2 of paragraph 4 may not have any interest relationship with the Offeror or with the public company whose securities are being acquired that could affect the adviser or CPA's independence.
On the reporting date of the public tender offer, the Offeror shall simultaneously serve a copy of the Public Tender Offer Report Form, the public tender offer prospectus, and relevant documents referred to in Paragraph 1 to the public company whose securities are being acquired.
Before the date the public tender offer begins, the Offeror shall publicly announce the Public Tender Report Form, the particulars in Paragraphs 2 and 3 and the public tender offer prospectus.
If the FSC, pursuant to Article 43-5, paragraph 2 of the Act, orders the Offeror to amend any reported content of a public tender offer, the public tender offer period shall be calculated anew from the date the Offeror makes the new report and public announcement.
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| Article 10 | An Offeror buying back its own shares in accordance with Article 28-2 of the Act shall publicly announce, and report to the FSC, attaching the Public Tender Offer Report Form and the following supporting documents, before the date the public tender offer begins:
- The document referred to in Subparagraph 2 of Paragraph 1 of the preceding article.
- The meeting minutes recording the resolution by the board of directors to buy back the shares.
- A declaration from a board of directors meeting, stating that, taking into consideration the company's financial condition, there will be no effect on the company's maintenance of capital.
- The most recent duly disclosed financial report audited or reviewed by a certified public accountant before the board resolution.
- The opinion of a certified public accountant or securities underwriter on the reasonableness of the buyback price.
- The documentation required under Article 10 of the Regulations Governing Share Repurchase by Listed and OTC Companies regarding methods for transferring shares to employees or under Article 11 regarding methods for converting shareholding or subscribing shares.
- Affect on unappropriated retained earnings of the company.
- Other documentation required by the FSC.
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| Article 11 | Any person who individually or jointly with another person(s) intends to acquire within 50 days shares accounting for 20 percent or more of the total issued shares of a public company shall employ a public tender offer to do so.
Where the following conditions are met, the requirement to employ a public tender offer as set forth in the preceding paragraph shall not apply:
- Transfer of shares between affiliates mentioned in Article 3.
- Shares obtained under the Taiwan Stock Exchange Corporation Regulations Governing Auction of Listed Securities by Consignment.
- Shares obtained under the Taiwan Stock Exchange Corporation Rules Governing Purchase of Listed Securities by On-Market Tender Offer or under the Taipei Exchange Rules Governing Purchase of OTC Securities by On-market Tender Offer.
- Shares obtained under Article 22-2, Paragraph 1, Subparagraph 3 of the Act.
- Using an issue of new shares as the consideration for acquiring the shares of another public company in accordance with Article 156-3 of the Company Act.
- Implementing a share exchange under the Business Mergers and Acquisitions Act to obtain shares of another public company.
- Other conditions in conformity with FSC regulations.
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| Article 12 | "Jointly with another person(s) intends to acquire [...] issued shares of a public company" in the preceding article refers to acquisition by the intending acquirers, for a common purpose, by means such as a contract, agreement, or other form of meeting of minds, of previously issued shares of a public company.
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| Article 13 | During the period from the determination date of a public tender offer until the reporting and public announcement date(s), any person who becomes aware of any information relating to that public tender offer due to his job duties or any other reasons shall keep such information in confidence.
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