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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).
- 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 11
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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 14
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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.
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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 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.
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Article 18
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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.
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Article 23
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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.
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Article 27
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An Offeror who acquires, individually or jointly with another person(s), over 5% of the outstanding shares of a public company shall be exempted from the requirement to file an acquisition report under Paragraph 1 of Article 43 of the Act for the shares acquired through that public tender offer.
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Article 28
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These Regulations shall be enforced from the date of promulgation, except for Article 27 as amended and issued on 4 December 2023, which shall be enforced from 10 May 2024.
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