前回の続きです。具体的な買収と合併をつなぐ規定の例を見てみましょう。
別に、Articleを細かに書いても、以下のような大ぐくりにしても、単なる書き方の違いだけですね。一例です。米国企業の場合は、優先株、Stock Option等がよくありますが、本件では簡単に普通株だけの前提ですね。
Article I The Merger:
1.1. The Merger; Effective Time of the Merger
Upon the terms and subject to the conditions of this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company in accordance with provisions of the General Corporation Law of the State of Delaware (the "DGCL"). As soon as practicable on the Closing Date, at the closing of the Merger (the "Closing"), the parties hereto shall cause the Merger to be consummated by filing a certificate of merger prepared and executed in accordance with the relevant provisions of the DGCL with the Office of the Secretary of State of the State of Delaware. The Merger shall become effective upon the filing of the Certificate of Merger with the Office of the Secretary of State of the State of Delaware ("Effective Time").– この第1条1項の書き方は、逆三角合併の典型的な書き方で、多少文言は違いますが趣旨は同じ書き方をします。
1.2. Closing -買収の諸条件が満たされた、又は権利者が特定の条件成就を放棄した後、2日後の10:00 a.m.に、ｘ法律事務所でとか、場所を書きます。米国は、いくつかの時間帯があるので、場所の記載が必要ですね。
1.3. Effect of the Merger
At the Effective Time, Merger Sub shall be merged with and into the Company and the separate existence of Merger Sub shall cease and the Company shall continue its existence under the laws of the State of Delaware as the surviving corporation (in such capacity, the Company is sometimes referred to herein as the "Surviving Corporation"). The Merger shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. –合併の効果としてMerger Subは消滅することを記載します。
1.4. Certificate of Incorporation and Bylaws -存続会社＝買収対象Companyの基本定款と付属定款ですね。経営支配権が変わりますので、Companyの新しいガバナンス等を付属定款に規定して、それを添付書類として添付することが多いです。
1.5. Directors and Officers - Companyの取締役・役員は、当然Parentからの出向者が何人か入ります。ParentとCompanyで決めた内容を入れるか、あるいはMerger Subの役員がCompanyの役員となると等と記載することもあります。
Article II Effect of the Merger on the Capital Stock of the Company and Merger Sub; Exchange of Certificates
2.1. Effect of the Merger on Capital Stock
At the Effective Time, as a result of the Merger and without any action on the part of the holder of any capital stock of the Company:
(a) Capital Stock of the Company（Merger Consideration等と記載することがありますが、要するに1株幾ら払うか記載します)
Each share of common stock, par value $0.01 per share, of the Company ( the “Share(s)”) issued and outstanding immediately prior to the Effective Time other than (i) Shares owned by Parent, – 等買収対象外の株式の事を記載します。（”Excluded Shares”）shall be converted into the right to receive $50.00 in cash per Share. At the Effective Time, all of the Shares (other than Excluded Shares) shall cease to be outstanding, shall be cancelled and shall cease to exist, and each certificate (“Certificate”) formerly representing any of the Shares (other than Excluded Shares) shall thereafter represent only the right to receive the Per Share Merger Consideration, without interest.
(b) Capital Stock of Merger Sub
At the Effective Time, each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one share of common stock, par value $0.01 per share, of the Surviving Corporation.(Parentの100%子会社であるMerger Subの株式はCompanyの株式になります。)
2.2. Payment for Shares
(a) Paying Agent; Payment Fund
Parentが指名したPayment AgentがMerger Subと契約を結び、Merger Considerationを旧株主への支払い手続きを行います。
Simultaneously with the Effective Time, Parent shall deposit, or shall cause to be deposited, with a paying agent nominated by Parent (the “Paying Agent”), for the benefit of the holders of Shares, a cash amount in immediately available funds sufficient for the Paying Agent to make payments.
(b) Payment Procedures (Exchange of Certificates)
Promptly after the Effective Time within five business days, the Surviving Corporation (=Company) shall cause the Paying Agent to mail to each holder of record of Shares (i) a letter of transmittal in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu of the Certificates) to the Paying Agent, and (ii) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu of the Certificates) in exchange for the Per Share Merger Consideration. Upon surrender of a Certificate (or affidavit of loss in lieu of the Certificate) to the Paying Agent in accordance with the terms of such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a cash amount in immediately available funds (after giving effect to any required tax withholdings ) equal to (x) the number of Shares represented by such Certificate (or affidavit of loss in lieu of the Certificate) multiplied by (y) the Per Share Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates.
(c) Withholding Taxes (支払額から税金が源泉徴収されます)
Each of Parent, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it reasonably determines in good faith it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable state, local or foreign Tax Law. To the extent that amounts are so withheld by Parent, the Surviving Corporation or the Paying Agent, as the case may be, such withheld amounts (i) shall be remitted by Parent, the Surviving Corporation or the Paying Agent, as applicable, to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent, as the case may be.
別に、Articleを細かに書いても、以下のような大ぐくりにしても、単なる書き方の違いだけですね。一例です。米国企業の場合は、優先株、Stock Option等がよくありますが、本件では簡単に普通株だけの前提ですね。
Article I The Merger:
1.1. The Merger; Effective Time of the Merger
Upon the terms and subject to the conditions of this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company in accordance with provisions of the General Corporation Law of the State of Delaware (the "DGCL"). As soon as practicable on the Closing Date, at the closing of the Merger (the "Closing"), the parties hereto shall cause the Merger to be consummated by filing a certificate of merger prepared and executed in accordance with the relevant provisions of the DGCL with the Office of the Secretary of State of the State of Delaware. The Merger shall become effective upon the filing of the Certificate of Merger with the Office of the Secretary of State of the State of Delaware ("Effective Time").– この第1条1項の書き方は、逆三角合併の典型的な書き方で、多少文言は違いますが趣旨は同じ書き方をします。
1.2. Closing -買収の諸条件が満たされた、又は権利者が特定の条件成就を放棄した後、2日後の10:00 a.m.に、ｘ法律事務所でとか、場所を書きます。米国は、いくつかの時間帯があるので、場所の記載が必要ですね。
1.3. Effect of the Merger
At the Effective Time, Merger Sub shall be merged with and into the Company and the separate existence of Merger Sub shall cease and the Company shall continue its existence under the laws of the State of Delaware as the surviving corporation (in such capacity, the Company is sometimes referred to herein as the "Surviving Corporation"). The Merger shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. –合併の効果としてMerger Subは消滅することを記載します。
1.4. Certificate of Incorporation and Bylaws -存続会社＝買収対象Companyの基本定款と付属定款ですね。経営支配権が変わりますので、Companyの新しいガバナンス等を付属定款に規定して、それを添付書類として添付することが多いです。
1.5. Directors and Officers - Companyの取締役・役員は、当然Parentからの出向者が何人か入ります。ParentとCompanyで決めた内容を入れるか、あるいはMerger Subの役員がCompanyの役員となると等と記載することもあります。
Article II Effect of the Merger on the Capital Stock of the Company and Merger Sub; Exchange of Certificates
2.1. Effect of the Merger on Capital Stock
At the Effective Time, as a result of the Merger and without any action on the part of the holder of any capital stock of the Company:
(a) Capital Stock of the Company（Merger Consideration等と記載することがありますが、要するに1株幾ら払うか記載します)
Each share of common stock, par value $0.01 per share, of the Company ( the “Share(s)”) issued and outstanding immediately prior to the Effective Time other than (i) Shares owned by Parent, – 等買収対象外の株式の事を記載します。（”Excluded Shares”）shall be converted into the right to receive $50.00 in cash per Share. At the Effective Time, all of the Shares (other than Excluded Shares) shall cease to be outstanding, shall be cancelled and shall cease to exist, and each certificate (“Certificate”) formerly representing any of the Shares (other than Excluded Shares) shall thereafter represent only the right to receive the Per Share Merger Consideration, without interest.
(b) Capital Stock of Merger Sub
At the Effective Time, each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one share of common stock, par value $0.01 per share, of the Surviving Corporation.(Parentの100%子会社であるMerger Subの株式はCompanyの株式になります。)
2.2. Payment for Shares
(a) Paying Agent; Payment Fund
Parentが指名したPayment AgentがMerger Subと契約を結び、Merger Considerationを旧株主への支払い手続きを行います。
Simultaneously with the Effective Time, Parent shall deposit, or shall cause to be deposited, with a paying agent nominated by Parent (the “Paying Agent”), for the benefit of the holders of Shares, a cash amount in immediately available funds sufficient for the Paying Agent to make payments.
(b) Payment Procedures (Exchange of Certificates)
Promptly after the Effective Time within five business days, the Surviving Corporation (=Company) shall cause the Paying Agent to mail to each holder of record of Shares (i) a letter of transmittal in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu of the Certificates) to the Paying Agent, and (ii) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu of the Certificates) in exchange for the Per Share Merger Consideration. Upon surrender of a Certificate (or affidavit of loss in lieu of the Certificate) to the Paying Agent in accordance with the terms of such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a cash amount in immediately available funds (after giving effect to any required tax withholdings ) equal to (x) the number of Shares represented by such Certificate (or affidavit of loss in lieu of the Certificate) multiplied by (y) the Per Share Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates.
(c) Withholding Taxes (支払額から税金が源泉徴収されます)
Each of Parent, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it reasonably determines in good faith it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable state, local or foreign Tax Law. To the extent that amounts are so withheld by Parent, the Surviving Corporation or the Paying Agent, as the case may be, such withheld amounts (i) shall be remitted by Parent, the Surviving Corporation or the Paying Agent, as applicable, to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent, as the case may be.
※コメント投稿者のブログIDはブログ作成者のみに通知されます