| Summary: | 碩士 === 國立中正大學 === 財經法律學研究所 === 99 === The development of merger and acquisition (M&A) is more thriving than before and the related regulations also need to be reviewed and revised with time. The thesis tries to introduce, observe and analyze the regulations regarding the timing and content of information disclosure of M&A, as well as bring the suggestion to lawmakers and regulators from the perspective of “due diligence” procedure and “independent expert” system.
Concerning the timing of disclosure, the thesis considers both of the abstract standard developed from the case of U.S. Supreme Court, Basic v. Levinson and the legitimate interest that participants of M&A pursue and then argues that it is necessary to distinguish the timing of material information establishment and disclosure. Further, the former should focus on the determination of “materiality” and the latter should put emphasis on the determination of “substantial certainty”. More specifically, this thesis tries to use the effect of due diligence process, which is a key procedure by taking a complete look at all the relevant sources of value and risk, to ascertain the timing of disclosure. Without attempting to catalog all such possible factors, we note by way of example that actual negotiations between principals or their intermediaries, agreement in principle as to price and structure, the influence of insiders or majority shareholders to the transaction and so on may serve as indicia. Therefore, this thesis argues that if the negotiation between participants of M&A transaction is reach the degree of “substantial certainty”, the participants should immediately disclose the material information regarding the M&A transaction and cannot wait until the passage of a resolution by the board of directors. In order to avoid the situation of over inclusive or under-inclusive, this article tries to set the deadline of M&A information disclosure as the end of due diligence process.
Concerning the content of disclosure, the thesis argues that the related regulations are insufficient, especially those regarding price, share exchange ratio and independent expert system, all of which are critical to the right of shareholders. The insufficiency causes the purpose of information disclosure to be unworkable. Therefore, the thesis considers the Regulatory Guide 111 and 112 released by Australian Securities and Investments Commission and then gives the specific suggestion to lawmakers, for example, the material content of reasonable report should be disclosed completely and in time.
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