Chapter 4 Information Required to Be Published in a Public Tender Offer Prospectus |
| Article 27 | The basic principles for preparing a public tender offer prospectus are as follows:
- The contents of the public tender offer prospectus must be detailed and unambiguous, and may not contain any misrepresentations or nondisclosures.
- The contents of the public tender offer prospectus must be up to date. All transactions or other events occurring before the printing of the prospectus which are likely to affect the judgment of interested parties shall be disclosed.
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| Article 28 | The following items shall be printed in the order below on the cover of the public tender offer prospectus:
- The signature or seal of the public tender offeror. If the public tender offeror is a company, the signature or seal of its responsible person shall also be included.
- The name of the real estate investment trust fund being acquired.
- The quantity to be purchased.
- The consideration (price) for the tender offer.
- The tender offer period.
- The following text shall be printed prominently:
- The public tender offeror and any other parties that have signed or sealed the public tender offer prospectus shall bear legal liability for any misrepresentations or nondisclosures contained in this public tender offer prospectus.
- Tenderers are strongly advised to read this public tender offer prospectus carefully and take note of the risks associated with tendering.
- The URL for the website(s) to visit for further information about the prospectus.
- The date of printing.
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| Article 29 | The content of the public tender offer prospectus shall include the following information:
- Basic information on the public tender offer.
- Public tender offer conditions.
- Source(s) of the consideration for the public tender offer.
- The risks associated with tendering.
- Procedures to be followed after expiration of the public tender offer period.
- The status of the public tender offeror's holdings in the beneficiary securities to be acquired.
- The circumstances of any other purchases and sales by the public tender offeror of the beneficiary securities to be acquired.
- The public tender offeror's future plans for the real estate investment trust fund to be acquired.
- The corporate resolution to initiate the public tender offer, and the opinion on its reasonableness.
- Matters of special note.
- Statements of any other material information.
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| Article 30 | The basic information on the public tender offer shall include the following particulars:
- If the public tender offeror is a natural person, the name and occupation of the offeror, his or her spouse, and any minor age children shall be indicated.
- If the public tender offeror is a company, the prospectus shall indicate the name, website address, and principal line(s) of business of the company, the names of its directors, supervisors, and any shareholders owning more than 10 percent of the public tender offeror's total issued shares, and the shareholdings of the above.
- The name, address, and telephone number of the mandated institution and the matters that it has been mandated to handle.
- The name, address, and telephone number of the lawyer and the matters that he or she has been engaged to handle.
- The name, address, and telephone number of the CPA and the matters that he or she has been engaged to handle.
- The name, address, and telephone number of the financial advisor and the matters that it has been engaged to handle.
- The name, address, and telephone number of the financial institution and the matters that it has been engaged to handle.
- The name, address, and telephone number of any other experts engaged and the matters that they have been engaged to handle.
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| Article 31 | The public tender offer conditions shall include the following particulars:
- Public tender offer period.
- Maximum and minimum projections of the quantity that is to be purchased through public tender offer.
- Consideration (price) for the public tender offer.
- Whether the present public tender offer involves any matter requiring the approval of, or effective registration with, any other competent authority, and whether the approval has been obtained or the registration has become effective.
- After the public tender offer conditions have been achieved and the public tender offer has publicly announced the achievement of the conditions, a tenderer is not allowed to cancel their tender, unless under a circumstance set forth in Article 20, paragraph 6.
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| Article 32 | The section on the source(s) of the consideration for the public tender offer shall include the following particulars:
- An itemized statement of the offeror's proprietary funds to be used as consideration, which shall provide a detailed description of the investment framework, the backgrounds of the investors at each tier, the concrete sources and details of the funds, including the identities of the ultimate providers of the funds and the plans relating to the funds arrangements. If the public tender offeror is a company and pays the tender offer consideration with the company's own funds, it shall explain the reasonableness of the source of the funds for this tender based on an analysis of solvency, cash flow, and profitability as shown in the financial reports from the most recent 2 fiscal years prior to the public announcement of this public tender offer.
- If financing is to be used in the purchase of the securities, the prospectus shall provide a detailed description of all financing plans, including the source of the financing, the lender and the borrower, and the collateral.
The public tender offeror shall issue a written undertaking that it bears the obligation to perform payment of the tender offer consideration, along with the documentation of all agreements or covenants in connection with the funds arrangement, which all shall be publicly announced together with the prospectus.
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| Article 33 | The following risks associated with participation in the tendering shall be noted in prominent text:
- The risk that the public tender offer case could be suspended pursuant to Article 43-5, paragraph 1, subparagraphs 1 to 3 of the Act.
- The risk that a competent authority might otherwise deny approval, suspend registration, reject filing, or revoke approval.
- The risk that the competent authority, acting pursuant to the provisions set out in Article 43-5, paragraph 2, of the Act, might order the public tender offeror to re-file and publicly announce a previously filed and publicly announced public tender offer.
- The risk that the time, method, or place for the payment of the tender offer consideration may be changed due to a natural disaster or emergency event pursuant to Article 8, paragraph 2.
- The risk that the time for the tenderer to receive the tender offer consideration may be postponed because the public tender offeror extends the public tender offer period pursuant to Article 19, paragraph 2.
- The risk that a tender may not be canceled after the conditions of the tender are achieved and publicly disclosed, unless under a circumstance set forth in Article 20, paragraph 6.
- The risk that the quantity tendered may not meet the minimum intended purchase quantity.
- The risk that not all beneficiary securities tendered can be sold.
- Any other material risk that the public tender offeror knows could affect the purchase process.
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| Article 34 | Information to be published with regard to procedures that will be followed after expiry of the public tender offer period:
- The time, method, and place for the payment of the tender offer consideration by the public tender offeror.
- The time, method, and place for the settlement of the transacted beneficiary securities of the tenderers.
- The time, method, and place for the return of any beneficiary securities that are tendered but not transacted:
- The method by which the tender offeror will handle the return of tendered securities if the tendered quantity falls short of the minimum quantity to be purchased.
- The method by which the tender offeror will handle the return of tendered securities, in the event that the number of tendered securities exceeds the maximum number to be purchased or there is a likelihood of non-compliance with Article 8 of the Real Estate Securitization Regulations, requiring the tender offeror to purchase the beneficiary securities at the same ratio from all the tenderers.
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| Article 35 | Information to be published with regard to the status of the public tender offeror's holdings of the beneficiary securities to be acquired:
- If the public tender offeror or any related party thereof, at the time of filing, already has holdings of the beneficiary securities to be acquired, the prospectus shall indicate the quantity and acquisition cost thereof, and present relevant transaction records for the 6 months preceding the day of filing.
- The prospectus shall also include the information set out in the preceding subparagraph if the public tender offeror is a company and any of its directors or supervisors has holdings of the beneficiary securities to be acquired.
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| Article 36 | Information to be published with regard to the circumstances of any other purchases and sales by the public tender offeror of the beneficiary securities to be acquired:
- If the public tender offeror or any of its related parties have made any purchase or sale of the beneficiary securities from or to any specific holders of the beneficiary securities during the 2 years prior to filing of the public tender offer, the prospectus shall indicate the date(s), counterparty(ies), price(s), and quantities(s) of the transaction(s).
- If the public tender offeror or any of its related parties have entered into any agreement or covenant relating to the present public tender offer with any specific holder of the beneficiary securities during the two years prior to filing of the public tender offer, the prospectus shall disclose the important content of the agreement or covenant, including matters such as whether it involves allowing participation in relevant investments of the public tender offeror or its related parties.
If the public tender offeror or any of its related parties have entered into any agreement or covenant relating to the present public tender offer with any specific holder under subparagraph 2 of the preceding paragraph during the two years prior to filing of the public tender offer, the prospectus shall disclose all of the agreement or covenant documents, which shall be publicly announced together with the prospectus.
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| Article 37 | Information to be published with regards to the public tender offeror's future plans for the real estate investment trust fund to be acquired:
- The objectives and plans of the public tender offeror in acquiring the real estate investment trust fund:
- Willingness to continue mandating, or to change, the trustee or the real estate management institution for the operation of the real estate investment trust fund, and the content of any plan to that effect.
- Any plan for additional purchase, disposal, or other matters involving the operation and management of the trust property, and the content of the plan.
- Any plan for alterations to the real estate investment trust plan or the real estate investment trust contract, and the content of the plan.
- Any plan to transfer the acquired beneficiary securities to another within one year after acquisition, and the content of the plan.
- Anything that, after completion of the acquisition, would lead to the occurrence, with respect to the acquired real estate investment trust fund, of termination of the trust contract, delisting from a securities exchange (or OTC market), or any other material event that would affect the rights and interests of the holders of the acquired real estate investment trust fund.
- Apart from the present public tender offer, there is any other material plan relating to the acquired real estate investment trust fund within 1 year from the expiry of the public tender offer period, the content of the plan shall be specified.
If the public tender offeror plans to delist the real estate investment trust fund from a securities exchange (or OTC market) after completion of the public tender offer, at least include the following information shall be published:
- To the understanding of the public tender offeror, the value of the trust property of the real estate investment trust fund, and the reasons for conducting the public tender offer.
- Whether the public tender offer conditions are fair to the holders of the acquired real estate investment trust fund, and the factors taken into consideration.
- Whether the public tender offeror or any of its related parties have in the most recent 2 years obtained from any outside party any appraisal report regarding the trust property of the real estate investment trust fund. If yes, indicate the content of the appraisal report, the identity of the outside party, the party’s professional qualifications and the compensation that the party received.
- Any plan, after delisting of the acquired real estate investment trust fund from the securities exchange (or OTC market), for obtaining a new exchange (or OTC) listing on the domestic securities exchange market.
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| Article 38 | The corporate resolution to initiate the public tender offer and the opinion on its reasonableness:
- If the public tender offeror is a natural person, the prospectus shall include the written opinion by its independent expert on the reasonableness of the cash price for the present public tender offer.
- If the public tender offeror is a company, the prospectus shall include the minutes of the shareholders meeting or directors meeting where it was resolved to initiate the tender offer, and the written opinion by an independent expert on the reasonableness of the cash price for the present public tender offer.
The opinion on the reasonableness in the preceding paragraph shall disclose at least the following information:
- The method, principles, or calculations adopted for determination of the public tender offer price.
- If a price appraisal report of a professional appraiser is taken into account in the public tender offer price, the content and conclusion of the appraisal report shall be specified.
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| Article 38-1 | The matters of special note in the prospectus shall specify the following :
- The lawyer's legal opinion.
- The proof specified in Article 10, paragraph 3.
- All assessment reports and opinion issued by other experts.
Any experts issuing an opinion, proof, or assessment report under the preceding paragraph shall affix their signatures or seals to the sections for which they are responsible in the public tender offer prospectus.
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| Article 39 | An electronic file of the public tender offer prospectus, formatted in the manner required by the FSC, shall be transmitted to the Market Observation Post System. If any modification is made to any particular of the public tender offer, the content of the public tender offer prospectus shall be amended immediately, and the amended information shall be provided on the Market Observation Post System.
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