Chapter 3 Conducting of the Public Tender Offer Procedures |
| Article 14 | After it receives the copy of the public tender offer registration statement, the public tender offer prospectus, and related documents delivered to it by the public tender offeror in accordance with Article 10, paragraph 6, the trustee of the real estate investment trust fund that is being acquired shall immediately convene the trust asset assessment committee to perform an assessment, the results of which shall be publicly announced within 15 days.
The trust asset assessment committee convened pursuant to the preceding paragraph shall investigate, verify, and deliberate the identity and financial condition of the public tender offeror, fairness of the tender offer conditions, and reasonableness of the sources of the tender offer funds, and provide recommendations to holders of the fund with regard to the present public tender offer. The verification by the trust asset assessment committee must fully disclose the verification measures adopted and the related procedures, and if an expert is engaged to issue a written opinion, the opinion shall be made public along with the disclosure. The trust asset assessment committee may also obtain written opinions from real estate managers, CPAs, and lawyers for reference in its assessment.
The results of the assessment by the trust asset assessment committee convened pursuant to paragraph 1 shall require the assent of at least one-half of the full number of committee members, and the circumstances of the verification, and the specific assenting or dissenting opinions of the committee members and their reasons shall be included. Minutes shall be taken of the meeting of the trust asset assessment committee, and the trustee shall record and preserve the entire proceedings of the deliberation on audio or video tape in evidence, and the conditions set out in 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 of time and the method for preservation of the minutes and the related evidence.
After it receives the documents for any re-filed public tender offer filing and public announcement, the trustee of the real estate investment trust fund that is being acquired shall immediately notify the trust asset assessment committee to perform an assessment, and make a new public announcement of the results within 15 days.
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| Article 15 | The public tender offeror shall mandate an institution which may lawfully conduct shareholder services business to be responsible for matters such as accepting deposit of the real estate investment trust beneficiary securities of the tenderers, delivery of the public tender offer prospectus, and receipt and delivery of funds and securities for the public tender offer.
The mandated institution shall set up a segregated account for the receipt and delivery of funds and securities under the preceding paragraph and use specific funds only for their specific purpose, and it 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 offer business within the last 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 the mandated institution accepts deposit of a tenderer's real estate investment trust beneficiary securities, it shall issue a receipt to the tenderer with the name of the real estate investment trust fund and the number of securities deposited.
When the mandated institution accepts deposit of beneficiary securities by means of a book-entry transfer made by a tenderer through a securities firm or a custodian bank, it shall comply with the regulations of the central securities depository.
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| Article 16 | The public tender offeror is limited to mandating one mandated institution only.
If the public tender offeror is a financial holding company or a subsidiary of a financial holding company, it may not mandate a subsidiary of the same financial holding company to serve as the mandated institution.
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| Article 17 | The public tender offeror, before the commencement date of the public tender offer period, shall deliver the public tender offer prospectus to its mandated institution and the securities related entities. It furthermore shall deliver the public tender offer prospectus to the tenderer at the tenderer's request or when the tenderer deposits real estate investment trust beneficiary securities with the mandated institution under Article 15.
The mandated institution of the preceding paragraph shall deliver the public tender offer prospectus on behalf of the public tender offeror.
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| Article 18 | Before making any modification to any condition other than those set forth in Article 43-2, paragraph 1 of the Act, the public tender offeror shall first make a filing with the FSC and a public announcement, and shall notify each tenderer, the mandated institution, and the trustee of the real estate investment trust fund.
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| Article 19 | The public tender offer period may not be less than 20 days nor more than 50 days.
In the circumstance under Article 7, paragraph 2 or for another legitimate reason, the original public tender offeror may file with the FSC and publicly announce an extension of the public tender offer period, provided that the combined total of such extension periods may not exceed 50 days.
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| Article 20 | The phrase "conditions of the public tender offer have been achieved"in these Regulations means that the minimum acquisition quantity set by the public tender offeror was reached by the expiry of the public tender offer period. If the public tender offer involves any matter requiring the approval of, or effective registration with, any other competent authority, that approval must have been obtained or the registration must have become effective.
Within 2 days counting inclusively from the date on which any of the following occurs, the public tender offeror shall file with the FSC and make a public announcement of the fact, with a copy to its mandated institution:
- 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 segregated account for the public tender offer under the name of the mandated institution.
- After the conditions of the public tender offer have been achieved, the tendered quantity reaches the maximum quantity 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 quantity tendered exceeds the quantity to be purchased, for the real estate investment trust beneficial securities which have been deposited but not transacted, the public tender offeror shall, on the next business day following the expiration of the public tender offer period, return to the original tenderers the real estate investment trust beneficial securities deposited by them.
After the conditions of the public tender offer have been achieved, if the public tender offeror does not complete the payment by the time for payment of the tender offer consideration prescribed in the public tender offer prospectus, the tenderer may, without issuing any notice of payment due, rescind the contract at its sole discretion. The mandated institution shall, on the following business day, return to the original tenderers the real estate investment trust beneficial securities deposited by them. However, if the time to return the real estate investment trust beneficial securities to the tenderer, as specified in the prospectus, is earlier than the time for payment of the tender offer consideration, the stipulations thereof shall govern.
When a tenderer applies to cancel its tender, it shall do so in writing.
After a public tender offeror has made the public announcement pursuant to paragraph 2, subparagraph 2, a tenderer may not cancel their tender, unless under any of the following circumstances:
- A circumstance under Article 7, paragraph 2.
- The public tender offeror, pursuant to paragraph 2 of the preceding article, makes a filing with the FSC and publicly announces an extension of the tender offer period.
- Other circumstances under which a tender may be canceled as provided by law.
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| Article 21 | When FSC approval for suspension of a public tender offer has been obtained pursuant to Article 43-5, paragraph 1 of the Act, the offeror, within 2 days counting inclusively from its receipt of the FSC letter of approval for suspension of the public tender offer, shall publicly announce the suspension and notify each tenderer, the mandated institution, and the trustee of the real estate investment trust fund.
The preceding paragraph apply mutatis mutandis when the FSC, pursuant to Article 43-5, paragraph 2 of the Act, orders amendment to the particulars of a public tender offer filing.
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| Article 22 | The public tender offeror shall provide an itemized written statement of the results of the tender to the trustee of the real estate investment trust fund on the expiry date of the public tender offer period set pursuant to Article 19. If there is any non-compliance of the real estate investment trust beneficiary securities obtained by the public tender offeror through the public tender offer with Article 8 of the Real Estate Securitization Regulations, the trustee shall notify the public tender offeror on the following day, to enable it to confirm the quantity tendered.
The public tender offeror, within 2 days counting inclusively from the expiry date of the public tender offer period referred to in the preceding paragraph, shall file with the FSC and make a public announcement of the following:
- The public tender offeror's individual or entity name and domicile or location.
- The name of the acquired real estate investment trust fund.
- The public tender offer period.
- In cases where the tendered quantity reaching a predetermined purchase quantity was set as a purchase condition, whether the condition has been fulfilled.
- The quantity of securities tendered and the quantity actually transacted.
- The time, method, and place of payment of the consideration for the tendered securities.
- The settlement period, method, and place for the transacted beneficiary securities.
The public tender offeror, on the date of public announcement pursuant to the preceding paragraph, shall provide respective notifications to the tenderers of matters related to the tender.
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| Article 23 | If the quantity of securities tendered exceeds the predetermined purchase volume or there is any likelihood of non-conformance with Article 8 of the Real Estate Securitization Regulations, the public tender offeror shall purchase the beneficiary securities at the same ratio from all the tenderers, and shall return those beneficiary securities which have been deposited but not transacted to the original tenderers.
In a public tender offer for real estate investment trust beneficiary securities, the offeror shall allocate its purchases pro rata to the quantities stated by each tenderer up to the last round 1,000 thousand units. If there is any remainder, the public tender offeror shall successively purchase the units in random order.
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| Article 24 | "Legitimate reason" Article 43-5, paragraph 3 of the Act means any of the following:
- A circumstances set forth in Article 7, paragraph 2 of these Regulations.
- Where the public tender 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 reason.
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| Article 25 | A filing or application documentation submitted under these Regulations shall be prepared and bound in the format prescribed by the FSC; the same shall apply to any supplements or corrections thereto.
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| Article 26 | When a public tender offeror makes a public announcement pursuant to Article 7, 10, 14, or 18 to 22 of these Regulations, the public announcement shall be complete after the required content of the public announcement has been transmitted to the Market Observation Post System.
When a public tender offeror that is not a public company is to make a public announcement under these Regulations, the announcement shall be made by the mandated institution by the method of the preceding paragraph.
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