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Regulations Governing Public Tender Offers for Securities of Public Companies(2012.07.05) |
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Article 2
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"Public Tender Offer" as referred to in these Regulations means purchase of securities from unspecified persons bypassing the centralized securities exchange market or the over-the-counter (OTC) markets, and instead using public announcement, advertisement, radio broadcast, telecommunication, letters, telephone, presentation show, explanation delivering or other methods to make a public offer.
The scope of public tender offers to purchase securities under Paragraph 2 of Article 43-1 of the Act includes purchase of issued shares, new shares entitlement certificates, warrants, preferred shares attached with warrants, convertible corporate bonds, corporate bonds attached with warrants, depositary receipts, and any other securities approved by the Financial Supervisory Commission (hereinafter "FSC") of a company, which has already completed the public issuance or supplemental public issuance of the above-mentioned securities in accordance with the Act.
No private-placement securities may be the subject of a public tender offer unless supplemental procedures for public issuance have been carried out.
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Article 5
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"Securities Related Entities" as referred to in these Regulations means the following:
- Stock Exchange or OTC Exchange.
- Securities and Futures Investors Protection Center.
- Other entities designated by the FSC.
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Article 9
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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).
- Other documentation required by the FSC.
If the public tender offer requires approval by or effective registration with the FSC or any other competent government authority, the filing documents shall be reviewed by an attorney, and a lawfully prepared attorney's opinion shall be furnished.
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 Paragraph 2 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 14
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The public company whose securities are being acquired shall, within seven 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 3 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 recommendation made to the company's shareholders on such tender offer purchase, wherein the names and reasons of objecting directors shall be 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.
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 its recommendation to the shareholders under paragraph 1, subparagraph 2 herein, it shall, within 7 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.
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Article 14-1
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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 3, it shall promptly form a review committee, and publicly announce the results of the review within 7 days.
The review committee of the preceding paragraph shall review the fairness and reasonableness of the public tender offer conditions, and make recommendations to the company shareholders with respect to the present tender offer.
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 specific assenting or dissenting opinions of the committee members, and the reasons for any dissent, shall be included.
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 7 days.
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Article 21
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When termination 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 two (2) days of receiving FSC approval for termination 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.
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Article 26
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When an Offeror or a public company whose securities are being acquired makes a public announcement pursuant to Article 7, 9, 10, 14, 14-1, 17 to 19, 21, or 22 of these Regulations, the public announcement shall be complete after it has transmitted the required content of the public announcement to the Market Observation Post System.
When an 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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Article 27-1
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The provisions of these Regulations shall apply mutatis mutandis to a public tender offer for shares of a primary exchange-listed (or OTC-listed) company or emerging stock company as defined in Article 3 of the Regulations Governing the Offering and Issuance of Securities by Foreign Issuers.
Public tender offers for shares of primary exchange-listed (or OTC-listed) companies or emerging stock companies shall be confined to already issued shares that are listed and traded on the domestic stock exchange or OTC market or registered as emerging stock. Reporting documents or notifications that the Offeror is required to serve on the foreign company whose securities are being acquired shall be served on the domestic litigious and non-litigious agent designated by the foreign company under the Act.
In the case of a public tender offer for country-of-listing shares or Taiwan depositary receipts of a secondary exchange-listed (or OTC-listed) company as defined in Article 3 of the Regulations Governing the Offering and Issuance of Securities by Foreign Issuers, the Offeror shall give notice of the information related to the tender offer to the domestic litigious and non-litigious agent designated by the foreign company under the Act. After receiving the notice, the domestic agent of the secondary exchange-listed (or OTC-listed) company shall promptly transmit the information related to the tender offer to the Market Observation Post System.
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