Aleni pay alım teklifi
Tender ofter tekeover bid
- Tez No: 51525
- Danışmanlar: PROF.DR. ZÜHTÜ AYTAÇ
- Tez Türü: Doktora
- Konular: Hukuk, Law
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 1995
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 330
Özet
Özet yok.
Özet (Çeviri)
SUMMARY Takeover bids are a phenomenon of the period since the late 1940s. They appeared first in the United Kingdom and the United States as a technique for gaining control of a company without the need to negotiate a merger of the traditional kind with its board of directors. Some European and developed Asian countries have witnessed tender offer as well. After 1970s, the popularity and acceptability of tender offer have grown dramatically. During the past two decades, takeover battles have not only increased in number, but also in scope and intensity. As a result,, regulatory bodies of some countries have regulated this transactions. The expression tender offer hasn't been defined comprehensively by legislation. However it is generally understood to mean an offer made to the existing shareholders of a company, or to one or more classes of such shareholders, to acquire their shares for a consideration in cash or securities. Because the purpose of offer is to gain control of target company, the offer can be made conditional upon sufficient offerees accepting it to ensure that control is acquired by the offeror. The offer may be made for small quantity of shares of target. This kind of offer is called as partial offer. Tender offer is also a way of making strong control power so that an offeror already in control of the company can purchase extra shares by using this method. The offeree is inevitably a public company. Being listed company is common feature of targets. The offeror can be company or individual. Someone acting in concert with offeror is also taken into account as offeror. If a tender offer is carried out by the directors of company whose shares are bid for, it is called as management buyout. The consideration offered in connection with a general bid is either cash or securities issued by offeror or another company. Combined consideration is also possible. If a cash bid is made, the price offered is always more than the current quoted price of the shares in question so as to induce the recipients of the bid to accept it instead of selling their shares on the stock exchange. In the case of a bid which offers securities, the market value of the securities offered should be higher than the current quoted price of the offerees' shares for the same reason. Some principles protecting both target company and its shareholders are very important in tender offer context. First of all, the adequate and full disclosure is328 must. The offeror should disclose its intentions about target company, the possible result of offer, its financial conditions, the source of funds used to finance the offer, its relationship with target company, the contingents of offer. The board of directors of the offeree should also disclose its approach to offer and its recommendation. In addition to this disclosed information, pre-offer disclosure imposed by general rules helps the targets shareholders to make its decision. Second, equality principle provides the shareholders to participate to the offer and to take offer premium equally. All holders rule, pro rata rule and compulsory offer rule are typical components of this principle. Finally, special insider trading rules are essential because the nature of the tender offer transactions needs different approach related with insider trading. The tender offer process is fundamentally a process of bargaining and negotiation. Therefore there can be several approaches. The principal approaches include a friendly transaction negotiated with management; a bear hug in which the offeror notifies the target company of a proposed acquisition transaction; a hostile offer made directly to target shareholders, without management approval; and as a supplement or alternative to these approaches, large open market and privately negotiated purchases of target stock. It should be noted that agreed takeovers are commercially and economically the equivalent of mergers. Target's directors are responsible for evaluating the offer with all aspects and should take position suitable for circumstances. If they believe that the offer is harmful for company and shareholders, they should take defensive measures. Although no defensive techniques have made the company acquisition-proof, they have increased the leverage of the board of directors in finding a better deal. Takeover defence techniques can be splitted into two categories. Pre-offer defensive techniques aim to protect the company against possible offers. The main kind of this category is charter amendments including fair price and staggered board provisions, anti greenmail provisions, contingent cumulative voting provisions, dual class capitalisation, restrictions on ownership and transfer of shares. The other pre-offer defensive techniques are rights plans, employment agreements and employee benefit plans. Second group measures can be taken when the offer is imminent or in progress. White knight arrangements, restructuring the company, pac-man defence, issuing the preferred shares, giving rights over the assets and the shares of target company to third parties are the typical samples of the last group. Tender offer transactions cause conflict of interest among directors of company whose shares are subject to offer, target company, its shareholders and the329 other constituencies (creditors, customers, employees). Directors' obligation as fiduciaries is to balance these interests and to act in what they reasonably determine in good faith, after appropriate consideration, to be in the best interests of the target company and its shareholders. The nonstockholder interests may be considered if rationally related to stockholder benefits. When the target's directors discharge their responsibility, they should take into account inadequacy of the price offered, nature and timing of the offer, questions of illegality, impact on constituencies other than shareholders, risk of nonconsummation and quality of securities being offered in the exchange. As a rule, all-cash, all-shares offers aren't a threat or coercive if the price offered include substantial premium over the market price of shares which is subject to tender offer. Hence this kind of offers don't justify a response that precluded shareholders from accepting the offer. On the other hand target's long term plans should be taken into account and protected by directors. Directors don't oblige to abandon a deliberately conceived corporate plan for a short-term shareholder profit unless there is clearly no basis to sustain corporate strategy. However directors responsibility can be changed dramatically if the company is on sale. In this case, stockholders' equity interest would terminate and sole responsibility of directors is to get highest price obtainable. Although tender offer is highly popular transaction in some countries having developed capital market, it is still new concept in Turkey. There are few rules about tender offer in Turkish law. Capital Market Law section 16/A gives power to Capital Market Board to regulate tender offer. Some rules have been issued about these transactions by Capital Market Board. However these rules are far from solving the problems and protecting the target's shareholders because of lacking of main principles, like equality rules, pro rata rules, compulsory offer rules and insider trading rules suitable for tender offer. Turkey has yet witnessed to tender offer wave. This is because there are few real public companies and no detailed regulation about tender offer in Turkey. Public companies have still been controlled by block share owners. Moreover economic instability and high inflation rates affect the tender offer transactions negatively. However it can be expected that some companies would be taken over by being used tender offer method in very near future. This expectation depends on two main evidence. First, Turkey is going to be a member of Custom Union. Therefore foreign companies would search target in Turkey to obtain market share by controlling the Turkish companies. Second, privatisation will accelerate the tender offer transactions. Additionally privatisation causes the same results as tender330 offer. So protecting the privatised companies' shareholders require that tender offer be detailed regulated. There is no doubt that the happening chance of these expectations depend on increasing the number of real public companies and stabilising the economic conditions of Turkey in the future. As a result, Capital Market of Turkey, with its power given by Capital Market Law section 16/A, should take into account the possibility of tender offer wave and make elaborated regulation about tender offer immediately. t* «8SKK5 &&
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