| Abstract: | 為了追求公司外部成長，藉由併購手段來擴充公司經營版圖已成為世界之潮流。然而進行併購時少數股東權益之保護、控制股東併購時控制權溢價之存否、董事受任人義務之內涵等等，均係相當值得研究的議題。本研究計畫即選擇了美國法上的經典判決及我國相關案例，主要以控制股東之合併案為主題，探討於控制股東併購時，董事受任人義務之具體內涵，股東權益保護之手段，以及控制權溢價之合理性等問題。
觀察美國法關於控制股東相關案例，為避免控制股東藉由其控制力從併購案中謀利，嚴重侵害少數股東及公司權益，在Perlman 案中之認為應限制之。就董事會之受任人義務部分，在控制股東不願出售其持股時，Mendel 案法院認為由於控制股東沒有任何義務出售持股以使併購案達成，故董事會當不得為求併購案之完成，而稀釋控制股東之股份，否則有違其受任人義務。在控制股東進行併購案例中，若係以合意併購之方式進行，為避免因被併購公司礙於控制力，而使併購交易流於不公平，有害小股東及公司權益，Weinberger案和Lynch 案法院則以「完全公平測試標準」此一嚴格標準，以公平交易及公平價格二階段來檢視併購案，若無法符合，則須給予少數股東損害賠償。在控制股東若以公開收購方式進行併構時，Unocal 案法院則認為公開收購之要約雖然表面上具有強制力，但若能符合有利害關係股東外其餘少數股東的多數同意、在同一要件下完成簡易合併，且無任何的報復措施，則併購案不具強制力，符合公平原則。最後回到國內實際案例探討慧智與致達之合併案，可知我國公司法規定董事僅對公司負有善管及忠實義務，但在合併案例中，被併購公司已消滅，則董事如何對之負受任人義務則有疑問，顯見我國受任人義務體系似有更進一步改善的空間。
Takeovers and restructuring activities continue to accelerate and reach record numbers this year. Old industries are being transformed, and a new economy, characterized by globalization of competition and its increased intensity, has emerged. Powerful change forces have been driving the increased merger/acquisition activities. In the foreseeable future, the change forces are not likely to diminish, and thus the M&A subject will continue to grow in importance. We have seen takeovers and restructuring activities fill the newspaper headlines almost daily. Such activities therefore have become central concern regarding public and corporate policy issues. This study explores some key topics in M&A activities and includes analysis of a wide range of importance cases. First, this study tries to solve some fundamental questions regarding Business Mergers and Acquisitions Law. There are various forms a business combination can take. Business Mergers and Acquisitions Law divides the combinations into three distinct types: statutory mergers, stock-for-stock exchanges, and acquisition of assets. A statutory merger occurs when two companies enter into a merger agreement, usually one company is merged into another, and the shareholders of the disappearing ( or dissolved ) company end up either with cash or stocks of the surviving company in compensation for their interest in the disappearing company. The essence of a stock-for-stock exchange is that the acquiring company, instead of entering into a merger agreement with the acquired company, makes a plan of exchange, where the shareholders of the acquired company will exchange their shares for shares of the acquiring company. As such, the acquired company becomes a wholly owned subsidiary of the acquirer. The third type of business combination: the asset acquisition mode can take many forms, including acquisition of stocks, assets and business units. The major issues regarding Business Mergers and Acquisitions Law include the following: whether the considerations in M&A activities, irrespective of the form a particular combination takes, are restricted to cash and/or stocks, what procedures are necessary for the protection of creditors and investors, whether the purchase of only one share or assets of small value will trigger the application of Business Mergers and Acquisitions Law, to whom the boards of the acquiring and acquired companies owe their fiduciary duties, and whether or to what extent a triangular merger should be allowed. Secondly, this study analyzes various issues regarding hostile takeovers, including disclosures to shareholders, proxy contests and tender offers. In particular, this study will explore defensive maneuvers that may be employed by a target』s management to defeat a hostile bidder. Such maneuvers include super-majority provision, staggered board, a new class of stocks that possess anti-merger features, poison pill plans, defensive lawsuits, defensive acquisitions, sale to a white knight, corporate restructuring, and share manipulation. Some general principles and guidelines will be established, with the focus on balancing the interests of the incumbent management ( and the welfare of the interested parties of the target company ), and the bidder ( who purportedly will increase the efficiencies of target』s operations). Lastly, this study will conduct case analysis. The cases include the following: TECO Electric & Machinery Co. Ltd. v.s. Sampo Technology Corp; Chang Hwa Bank v.s Taishin holdings; D-Link Corporation v.s. Wollemi Technical I nc.; China Development Financial Holding Corporation v.s. TISC Corp.; Far Eastone Telecommunications Co., Ltd. v.s. KG Telecommunications Co.,Ltd; Integrated Circuit Solution Inc. v.s. Integrated Silicon Solution Inc.The purpose of case analysis is to discover problems with respect to regulatory structures, with emphasis on business culture, social infrastructures, pyramid or cross shareholding, and organizational behaviors. |
