英文摘要 |
Mergers and Acquisitions (M & A) are important channels through which enterprises expand and integrate resources. However, an M&A deal could involve billions or even dozens of billions of dollars and could have a huge impact on not only the shareholders’ interests of both sides but also the structure of the industries involved. The boards might have different considerations and decision-making concerns depending on whether they are acquiring board or target board. They might adopt different responses to different types of transactions which might lead to potential breach of their fiduciary duties. Thus, the author will discuss the proper judicial review standards of directors’ fiduciary duties in M&A deal under the Delaware law in the United States. A hostile takeover or tender offer could be a threat to the target company’s policy or culture; therefore, the target board might adopt defensive mechanisms to protect the continued existence of the target. However, on the other hand, the board might adopt defensive measures to pursue their personal interests, since they could lose their jobs if the hostile takeover succeeded. Thus, it is important for the court to examine the purposes of the defenses adopted by the board. In a friendly M&A transaction, since both parties put a lot of resources into the deal, it is thus reasonable to have deal protection measures in the agreement to make sure the deal can be completed. However, if an uninvited third party offers a superior offer, the deal protection provision could become an obstacle for the target board to accept the superior offer. Therefore, the deal protection provision might prevent the target board from pursuing the best interest of the shareholders which in turn might lead to a breach of directors’ fiduciary duties. This article reviews the judicial review standards for the deal protection provisions under Delaware law and concluded that the legality of deal protection provisions shall be decided on a case-by-case basis. According to the Delaware court, there must be an effective fiduciary out clause in the M & A agreement or in the deal protection provisions in order to make the contract valid and not conflicting with the fiduciary duties of the target board. However, this requirement caused some difficulties in M & A practice. This article will also discuss some responses from the M & A practices to the judicial opinions. |