Study On Interlaced Board Provisions In Anti-takeover

With the increasing activities of mergers and acquisitions,it has gradually become an important part of modern market economy.At present,China has completed the reform of non-tradable shares.The free transfer of shares has pushed China's securities market into the era of full circulation.The M&A market is facing more challenges and opportunities,and the war between acquisition and anti-acquisition of listed companies has become more and more fierce.The M&A market is facing more challenges and opportunities,and the war between acquisition and anti-acquisition of listed companies has become more and more fierce.M & A(mergers and acquisitions)is an important part of the modern market economy.Since 2005,with the completion of the reform of China's split share structure,the securities market has entered the era of full circulation,and the M & A market has ushered in a new wave.The war between takeover and anti-takeover of listed companies is becoming increasingly fierce.As one of the anti-takeover clauses,the staggered Board of Directors clause not only has a strong anti-takeover effect,but also has a simple and convenient way of operation.Mild effect has become one of the common anti-takeover measures used by domestic and foreign listed companies to resist hostile takeover.However,due to the legislative regulation and related research on staggered board of directors clause in China,the whole research lags behind.In market practice,staggered board of directors clause involves the core of target corporate governance board selection system,so this article mainly takes the staggered board clause as the starting point for the necessity of anti-takeover,starting from the original discussion.First of all,this paper discusses the theoretical basis and applicable value analysis of staggered board of directors clause in anti-takeover.Secondly,this paper demonstrates the legitimacy basis of staggered board of directors clause from three aspects: constitution autonomy,shareholder right autonomy and current company system.Finally,combined with the full text of the discussion,from the systematic thinking of the use of staggered board terms,the legal system applies to the matching system and measures of the staggered board terms.This paper is divided into three parts.The first part discusses the theoretical basis andvalue analysis of staggered board of directors clause in anti-takeover.Mainly by simply introducing the basic meaning of staggered board of directors clause,combing out the current situation of staggered board clause development at home and abroad,combining with the law of hostile takeover generation and development,first clear that the target company anti-takeover decision-making power belongs to the shareholders' meeting.A new definition is given to the criterion of hostile takeover,and the conclusion is that the goodwill and hostility of hostile takeover should include the expression of shareholders' interests in the evaluation standard of hostile takeover according to the attitude of the board of directors of the target company.At the end of this part,by combing the staggered board clauses value analysis,think staggered board of directors clause in target company to carry out anti-takeover activities is necessary.The second part demonstrates the validity rules of staggered board of directors clause in anti-takeover.The main contents include the review and analysis of the validity of the staggered board clause from the perspective of the autonomy of the articles of association.This paper analyzes briefly the interpretation of the nature of articles of association and the nature of company law,clarifies the boundary between the freedom of articles of association and the mandatory provisions of company law,and thinks that the typed mandatory provisions of company law cannot satisfy the diverse corporate practice.Staggered articles of directors do not infringe on the interests of minority shareholders and public interests which are protected by the mandatory provisions of the Company Law.Secondly,because the staggered board of directors clause has the possibility of restricting the shareholders' right to elect directors,this paper analyzes the nature of shareholders' rights from the angle of shareholders' right autonomy,and holds that the shareholders' right to elect directors is one of the inherent rights of shareholders.The restriction of shareholders' inherent rights can be reasonably demonstrated by shareholders' self-relinquishment of their own rights.The acquisition of shareholders who,knowing that the articles of association of the target company have staggered board terms,insists on entering the target company as compliance with the terms of the staggered board of directors and as a waiver of their right to elect a director,This paper holds that the reasonable basis for the waiver of shareholders' rights lies in the reasonableness of shareholders' rights.Lookforward to the protection.At the same time,the existence of staggered board clause may conflict with the principle of "same share,same right".It is the key to improve the competitiveness of Chinese enterprises and capital market to give listed companies a certain space of autonomy.Finally,this paper analyzes the validity of staggered board of directors clause from the current corporate law system.On the one hand,the staggered term of directors does not violate the provisions of the Company Law on the term of directors,on the other hand,the system of shareholder selection and appointment involved in the staggered board of directors does not restrict the right of shareholders to nominate directors,the right to choose directors and the right to change directors.Therefore,it is concluded that the institutional arrangements arising from the application of the staggered director clause do not violate the laws,regulations and relevant regulations.In the third part of this paper,the author thinks that the institutional arrangement produced by the staggered board of directors clause can not be judged by the legitimacy of the system itself.It is also necessary to add the fiduciary obligation mechanism in the anti-takeover process to protect shareholders from obtaining decision-making support.Secondly,on the procedural mechanism of staggered board clause,it is required that the shareholders who disagree with the clause formulation should retain the withdrawal mechanism before the acquisition occurs.Then,we should establish a comprehensive compulsory information disclosure system to complement shareholders' ability to obtain information.Finally,the establishment of an absolute majority clause and restrictions on the removal of Dong from office by shareholders for no reason clause to ensure the smooth implementation of the staggered board of directors clause.