Chapter III The Proceeding of the Public Tender Offer Process |
| Article 14 | The public company whose securities are being acquired shall, within 15 days after its receipt of the copy of the Public Tender Offer Report Form, the public tender offer prospectus, and relevant documents reported and publicly announced by the Offeror pursuant to Paragraph 8 of Article 9, have the following items publicly announced, reported in writing to the FSC for recordation, and copied to the Securities Related Entities:
- The types, number and amount of shares currently held by the current directors and supervisors and any shareholders with more than 10% of the company's stocks.
- The board of directors shall make recommendations to the company's shareholders with respect to the status of verification of the identity and financial condition of the Offeror, fairness of the tender offer conditions, and reasonableness of the sources of the tender offer funds, and the specific assenting and dissenting opinions of the directors and their reasons therefor shall be clearly recorded.
- Whether there were major changes on the company's financial conditions after the delivery of its most recent financial statements, and the contents of such changes.
- The types, number and amount of shares of the Offeror or its affiliated enterprises as defined under Chapter 6-1 of the Company Act held by the current directors, supervisors or the major shareholders having over 10% of the shareholding of the target company.
- Other relevant important information.
Shares held by persons in Subparagraph 1 and Subparagraph 4 of the preceding paragraph include those held by his/her spouse and minor children and held under the names of other persons.
The board of directors must fully disclose the verification measures already adopted and the related procedures with respect to the verification conducted under paragraph 1, subparagraph 2, and if an expert is engaged to issue a written opinion, it shall be made public along with the disclosure.
After receiving documents in connection with a new report and public announcement made by the Offeror pursuant to Article 43-5, paragraph 2 of the Act (hereinafter, a "new report and public announcement"), if the public company whose securities are being acquired must consequently amend the status of verification of relevant matters or its recommendations to the shareholders under paragraph 1, subparagraph 2 herein, it shall, within 15 days, make a new public announcement of the items in that subparagraph, and prepare and submit a written report to the FSC for recordation, with a copy to the Securities Related Entities.
|
Info |
| Article 14-1 | After a public company whose securities are being acquired has received the copy of the Public Tender Offer Report Form, the public tender offer prospectus, and other documents reported and publicly announced by the Offeror under Article 9, paragraph 8, it shall promptly form a review committee, and within 15 days publicly announce the results of the review and the documentation showing that the review committee members meet the requirements under paragraph 4 of the present article.
The review committee of the preceding paragraph shall investigate and review the identity and financial conditions of the Offeror, fairness of tender offer conditions, and reasonableness of the sources of the tender offer funds, and make recommendations to the company shareholders with respect to the present tender offer. The review committee must fully disclose the verification measures already adopted and the related procedures with respect to the verification conducted under paragraph 1, subparagraph 2, and if an expert is engaged to provide a written opinion, it shall be made public along with the disclosure.
The review committee members shall not be fewer than 3 persons. If the public company whose securities are being acquired has independent directors, it shall be composed of the independent directors. If the number of independent directors is insufficient or there are no independent directors, it shall be composed of members selected by the board of directors.
The eligibility conditions for review committee members shall comply with the requirements set out in Article 2, paragraph 1 and Article 3, paragraph 1 of the Regulations Governing Appointment of Independent Directors and Compliance Matters for Public Companies.
The review committee's review results shall require the assent of one-half or more of all the committee members, and the status of verification, the specific assenting or dissenting opinions of the committee members, and their reasons shall be submitted to the board of directors. Article 7, paragraph 2 of the Regulations Governing the Establishment and Related Matters of Special Committees of Public Companies for Merger/Consolidation and Acquisition shall apply mutatis mutandis to the methods for member attendance at the meetings.
The discussions at a review committee meeting shall be included in the meeting minutes. The proceedings of a review meeting shall be recorded in their entirety by the company in audio or video and preserved as evidentiary documentation. Article 10 of the Regulations Governing the Establishment and Related Matters of Special Committees of Public Companies for Merger/Consolidation and Acquisition shall apply mutatis mutandis to the period and method for preservation of the minutes and relevant evidentiary documentation.
After receiving documents in connection with a new report and public announcement by the Offeror, the public company whose securities are being acquired shall promptly notify the review committee to conduct a review and make a new public announcement of the results of the review within 15 days.
|
Info |
| Article 15 | An Offeror shall mandate the institutions that are permitted by law to handle shareholder services for others to be responsible for the taking Tenderer's deposit of securities, the delivery of public tender offer prospectus, and the receipt and payment of the public tender offer funds or securities, etc.:
A mandated institution shall set up a segregated account for the receipt and payment of funds or securities under the preceding paragraph, and shall perform its fiduciary duties faithfully and with due care.
The mandated institution shall meet the qualifications and requirements specified in the Regulations Governing the Administration of Shareholder Services of Public Companies, and shall not have received any official reprimand or more severe disciplinary action by the FSC in connection with public tender business within the most recent year. This restriction need not apply, however, if concrete steps have been taken to correct the infraction and the FSC has recognized the improvement.
When a mandated institution takes deposit of securities from the Tenderer, it shall issue to the Tenderer a receipt describing the types and number of the securities.
When a mandated institution takes deposit of securities from the Tenderer by means of book-entry via a securities firm or a custodian bank, it shall comply with regulations applying to centralized securities depository enterprises.
|
|
| Article 15-1 | An Offeror may use only one mandated institution. Notwithstanding the foregoing, in the case of acquiring securities of a public company that are not listed on the exchange, OTC, or emerging stock market, not more than two mandated institutions are allowed.
If the Offeror is a financial holding company or a subsidiary thereof, it may not engage a subsidiary of the same financial holding company as its mandated institution.
|
|
| Article 16 | The Offeror, unless buying back shares according to Article 28-2 of the Act, shall serve the public tender offer prospectus to its mandated institution and Securities Related Entities before the commencement date of the public tender offer period; and shall furthermore deliver the public tender offer prospectus to the Tenderer at the Tenderer's request or upon the Tenderer depositing the securities with the mandated institution referred to in Article 15.
The mandated institution mentioned in the preceding paragraph shall deliver the public tender offer prospectus on behalf of the Offeror.
|
Info |
| Article 17 | Before making any modifications to conditions other than those set forth in Paragraph 1 of Article 43-2, the Offeror shall file a report with the FSC and make a public announcement, and each Tenderer, mandated institution and the public company whose securities are being acquired shall be notified.
|
Info |
| Article 18 | The length of public tender offer period shall not be less than 20 days nor more than 50 days.
If what is provided under Paragraph 2 of Article 7 occurs or for another legitimate reason, the original Offeror may report to the FSC and make a public announcement of an extension of the public tender offer period. However, the extension period shall not exceed 50 days, and shall be limited to one time only.
|
Info |
| Article 19 | For purpose of these Regulations, the expression that "the conditions of the public tender offer have been achieved" means that by the expiration of the tender offer period the minimum number of shares for acquisition in the tender offer as set by the Offeror has been reached. If the public tender offer involves any matter that requires the approval of the FSC or other competent authority or that requires an effective registration, the approval shall have been obtained or the effective registration made.
With respect to any of the following matters, the Offeror shall submit a regulatory filing with the FSC and make a public announcement, with a copy thereof to the mandated institution within 2 days counting inclusively from the date of occurrence of the fact:
- It has obtained approval or effective registration from another competent authority before the conditions of the public tender offer have been achieved.
- The conditions of the public tender offer have been achieved.
- The tender offer consideration has been transmitted to the mandated institution's segregated account for public tender offer.
- After the conditions of the public tender offer have been achieved, the number of securities tendered reaches the maximum number to be purchased.
If, on the expiration day of the public tender offer period, the conditions of the public tender offer have not been achieved, or the number of securities tendered exceeds the number to be purchased, for the securities which have been deposited but not transacted, the Offeror shall, on the business day following the expiration of the public tender offer period, return to the Tenderer the securities deposited by the Tenderer.
After the conditions of the public tender offer have been achieved, if the Offeror does not complete the payment by the time for payment of the tender offer consideration as specified in the prospectus, the tenderer may, without issuing any notice of payment due, terminate the contract at its sole discretion. The mandated institution shall, on the following business day, return to the tenderer the securities deposited by the tenderer. However, if the time to return the securities to the tenderer, as specified in the prospectus, is earlier than the time for payment of tender offer consideration, such stipulation shall govern.
When a Tenderer applies to revoke its offer to sell, it shall do so in writing.
A Tenderer may not revoke its offer to sell after the Offeror has made a public announcement under Paragraph 2, subparagraph 2, unless under any of the following circumstances:
- A circumstance set out in Article 7, Paragraph 2.
- The Offeror has submitted a regulatory filing with the FSC and made a public announcement of an extension of the public tender offer period pursuant to Article 18, Paragraph 2.
- The offer to sell is voidable under any other law.
|
Info |
| Article 20 | When an Offeror buys back its own shares in accordance with Article 28-2 of the Act, shares held by its affiliated enterprises as defined under Article 369-1 of the Company Act, or directors, supervisors, or managers themselves or spouses or minor children thereof, or held under the name of another person, shall not be sold in response to the offer during the period of share buyback by the Offeror.
When a government operated enterprise in which the government holds more than 50 percent of the total issued shares is approved by the Executive Yuan, at the request of the competent authority of the enterprise, to buy back its own shares in accordance with Subparagraph 3 of Paragraph 1 of Article 28-2 of the Act, the restriction set forth in the preceding paragraph may be exempted.
The price in a public tender offer referred to in the preceding paragraph shall not be higher than the closing securities price on the date of public announcement of the public tender offer or the net worth per share on the financial report for the most recent period, whichever of the two is higher; the public tender offer price and the volume of securities to be acquired through the public tender offer shall furthermore not be changed during the public tender offer period.
|
Info |
| Article 21 | When suspension of a public tender offer proceeding is approved by the FSC pursuant to Paragraph 1 of Article 43-5 of the Act, public announcement and notice of such to each Tenderer, mandated institution, and the public company whose securities are being acquired shall be made within 2 days counting inclusively from the date of receiving FSC approval for suspension of the public tender offer.
The preceding paragraph shall apply mutatis mutandis in the event the FSC, pursuant to Article 43-5, paragraph 2 of the Act, orders amendment to any reported content of a public tender offer.
|
Info |
| Article 22 | The Offeror shall, within 2 days counting inclusively from the public tender offer period's expiration date as provided under Article 18 of these Regulations, report to the FSC and publicly announce the following matters:
- The name or trade name, and domicile or location of the Offeror.
- The name of the public company whose securities are being acquired.
- The types of the securities acquired.
- The public tender offer period.
- If the tender offer purchase is conditioned upon that the shares number to be sold has reached the projected shares number to be acquired, the description of whether such condition has been satisfied.
- The number of the securities to be sold and the actual number sold.
- The time, manner and place for payment of the purchase consideration.
- The delivery time, manner, and place for the transacted securities.
On the date of public announcement pursuant to the preceding paragraph, the Offeror shall notify the Tenderers respectively of the sale-related matters.
|
Info |
| Article 23 | If the shares number to be sold has exceeded the projected shares number to be acquired, the Offeror shall purchase the shares pro rata, rounded down to a full share, from all the Tenderers. If there are shares left over, the Offeror shall successively buy the shares in random order. The Offeror furthermore shall return those shares which have been deposited but the transaction of which has not been consummated to the original Tenderers.
|
|
| Article 24 | "Legitimate reason" in Paragraph 3 of Article 43-5 of the Act refers to any of the following:
- Circumstances set forth in Paragraph 2 of Article 7.
- Where consent has been given by a resolution of the board of directors of the public company whose securities are being acquired, as evidenced by supporting documents. However, this shall not apply where the entirety of the body of directors of the public company whose securities are being acquired does not conform to the provisions of Article 26 of the Act.
- Where the Offeror's failure to complete the public tender offer in the previous instance was caused by another domestic competent authority not yet having issued its review results, and that authority subsequently made a decision of approval.
- Other legitimate reasons.
|
Info |