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Legal Issues on Anti-takeover of Chinese Listing Company

Author: ChenZuo
Tutor: FuZuo
School: Jilin University
Course: Civil and Commercial Law
Keywords: Hostile Takeover Anti-takeover Anti-takeover measures The balance of interests
CLC: D922.291.91
Type: Master's thesis
Year: 2005
Downloads: 360
Quote: 4
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Abstract


Listing company takeover, especially hostile takeover, is one of the most diverging phenomena in the western economic history. With the upswing of the fifth tidal wave of M&A around the world, takeover activities in China are boosting at a tremendous pace, among which are the hostile takeover and anti-takeover activities, not much, but causing unneglectable market crash and conflict of interests. Anti-takeover ranks as both economic and legal problems, but business practice has leaving legal research and legislation far behind. Past legal research focused on the adscription of deciding power of anti-takeover, and the weakness of Chinese legislation over such issues leads to the divarication and confusion in business area. Following the basic rule of thinking logic, beginning with the theories and doctrine of anti-takeover, this paper seeks to discuss the establishment of anti-takeover legal systems and make a contribution to capital operation. The summery for listing company anti-takeover starts from the definition of anti-takeover, which means the defenses of target-company guarding against or preventing the takeover of purchaser, to avoid the result of transferring control power. Comprehensive Anti-takeover tactics are exotic, including but not limited to: shark provision(anti-takeover amendments), prison pills, dead swap, MBO and ESOP, targeted stock repurchases, golden parachute, crown jewels, scorched earth policy, split-ups and spin-offs, white knight, pac-man and lawing. Theory analysis of anti-takeover first illustrates the relationship between value of hostile takeover and corporate governance, which is the foundation of differences of anti-takeover statues among countries. With both positive and negative impact on social economy, hostile takeover appears to be the significant means of outer corporate governance, especially in the Chinese situation of lacking the strength of inter corporate governance. Economic analysis is also applied in this part. Study indicates that, examining from the interests of shareholders, the anti-takeover defenses taking to rise the purchasing price and conditions means the maximum of the target company and shareholders. The intervention of anti-takeover activities in the company-purchase relationships demands shareholder-interests-focused standard, strengthening the protection of social shareholders, balancing the social liabilities and restraining the managements of self-benefit behaviors Then I moved into the regulations on anti-takeover devices and made a comparison on U.S. and Britain anti-takeover legislation patterns and drew a conclusion that the board neutrality/shareholder choice pattern (Britain pattern) is more adoptable for China. At the same time, some comments were made against the Chinese present takeover act, especially the direct provisions restricting the anti-takeover devices of the target company, even if such measures were the choice of shareholders. Several suggestions were also put forward in this part, including but not limited to: entitling the shareholders convention to decide the anti-takeover measures, permitting the measures taken by the board under certain circumstances and supplementing the special regulations on duties of the board, in which the duty of care and its measurements were established. Special anti-takeover devices were recognized in the takeover act, which is a positive legislative response to the company

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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