我國敵意併購之法制研究 ─ 以日月光收購矽品案為例

Abstract

企業為了追求規模經濟、促進效率經營、擴大市場占有率及提升產業競爭力……等目的，常藉由併購方式予以成就。而併購案件，依目標公司之意願，則有「合意併購」與「敵意併購」之分。當併購者決定發起敵意併購時，其後即是研擬如何以最低成本、最有效率之策略，遂行其目的。而身為被狙擊之目標公司，則必採行各種方式、運用各種資源與之對抗。\n 美國是企業併購活動歷史悠久之國家，其敵意併購模式堪稱多元與靈活。為建構我國完善之敵意併購法制環境，誠有求諸美國經驗之必要，用作規劃參酌。\n2015年8月底，我國封測大廠日月光公司宣布以溢價34%之價格公開收購矽品公司25%股份，因該項收購行動事前未曾徵詢矽品公司之意願，因此，該案旋即成為台灣歷年來規模最大之敵意併購案件，而後續發展過程中雙方高潮迭起之法律攻防，亦為我國敵意併購史再添經典。\n 觀諸本案過程，發現若干現象之適法性容有疑義，例如：日月光於首次公開收購說明書上記載收購目的為「純財務性投資」，嗣後卻演變成經營權爭奪，其公開說明書是否涉有虛偽隱匿問題？矽品公司一方面以日月光出價不足，建議股東勿參與應賣，一方面又以低於日月光收購價格之金額與鴻海公司進行策略聯盟，希以「白馬騎士」策略削減日月光併購意圖，而為通過策略聯盟之換股案，竟以「閉鎖期」機制，技術性將日月光排除於出席股東臨時會名單之外，使之無法與會俾就相關議案參與表決，則現行「停止過戶制」是否應檢討改進？矽品公司董事會提出之防禦措施，難免引人質疑係董事為保自身權位之作為，則究竟我國公司面對敵意購併時，董事會應採取之立場為何？公平交易委員會對於本案申報事業結合，不僅延長審理期限甚或中止審理，令人納悶主管機關對於敵意併購之事業結合，審查標準是否不同？2015年7月企業併購法修正第5條，將公司進行併購時應謀求「股東最大利益」修改為應謀求「公司最大利益」，按「股東最大利益」尚得以「股價」評量，而「公司最大利益」係一不確定之法律概念，須考量各利害關係人利益之調和，其「最大值」如何評量？ \n 敵意併購攻防行動在台雖非少見，但就所涉法律爭點而言，本案可謂多且複雜，凸顯我國敵意併購法制尚有不足，希冀藉由本文探討及建議，提供業界與政府部門日後處理類似案件之參考。

In order to pursue the success of the business in terms of economy of scale、operational efficiency、market share expansion、sustainable competitive advantages, company often rely on mergers and acquisitions (“M&A”) to achieve its goal. There are two major M&A deal types- “friendly takeover” and “hostile takeover”, mainly depending on the will of the target company. If one company decides to acquire the target company using “hostile takeover”, the management team of the acquiring company will need to form the most efficient strategy to reach its business goal considering the deal cost and the time spent etc.,. In contrast, the target company will then find a way to fight against the takeover by all means.\n United States of America is the country with a long history in M&A activities around the world. Taking “hostile takeover” for example, the design of the deal structure is not only diversified, but also flexible. Going forward, to construct and further complete the legal environment in Taiwan “hostile takeover” market, it is very important for our legislators to refer to and/or to learn from American experiences in M&A deals.\n In August 2015, Advanced Semiconductor Engineering, Inc (“ASE”) announced to acquire up to 25% stake in Siliconware Precision Industries Co., Ltd. (“SPIL”) through public tender offer. The offer price represented about a 34% premium based on SPIL’s closing price. As SPIL was unaware of ASE’s plan in advance, the deal soon became the single largest “hostile takeover” case in the history of Taiwan M&A market. In addition, the follow-on legal actions against each other also provided some valuable experiences and leave us a classic case study for the reference of future M&A deal. \n While walking through the subject case, there are still some legal disputes arise. For example, ASE stated in its Public Tender Offer Prospectus (“Prospectus”) that the purpose of the deal was for “pure financial investment” , but the deal ended up to become fighting for the ownership. Are there any material misleading misstatements or omissions in the Prospectus? On the other hand, SPIL suggested its shareholders not to accept the offer price proposed by ASE and claimed the price was undervalued. However, SPIL not only invited Hon Hai Precision Industry Co as the “white knight” to prevent ASE from hostile takeover adopting even lower price in the proposed new share swap, but also applied the “lock-up period” mechanism to block ASE from attending SPIL special shareholders’ meeting and from exercising its voting right. Should the “Closing of Stock Transfer Books (so-called the record date)” system be revisited and further improvement? Furthermore, the critics questioned about the actions taken by SPIL board member were for self-interests. Whose interests indeed should the Board of Directors stand for if hostile takeover occurs? Moreover, Fair Trade Commission had extended ASE’s SPIL takeover bid review and even suspended the review afterward. Does the authority have different standard while reviewing hostile takeover deal from other deals? In addition, according to the amendment made in July 2015 to “Business Mergers And Acquisitions Act” article 5, the Board of Directors shall seek for “the best interest of the company” instead of “the best interest of the shareholders” in the M&A deal. Share price of the company might be a good indicator to evaluate the best interest of the shareholders, but how to evaluate the best interest of company when there is always tradeoff among the interests of stakeholders?\n Compare with other M&A deal in Taiwan, the attack and defense strategies in ASE/SPIL hostile takeover case was the most comprehensive and complicated from legal perspective. It also shows there is still room for improvement in hostile takeover related laws and regulations. Hopefully, through the detailed analysis, this article can offer some valuable thoughts and suggestions for the reference of future M&A deal.