THAILAND Law and Practice Contributed by: Sunyaluck Chaikajornwat, Chumpicha Vivitasevi, Pratumporn Somboonpoonpol and Threenuch Semaming, Weerawong, Chinnavat & Partners Ltd
7.2 Type of Disclosure Required In the case of issuing shares in a business combina - tion to target shareholders, it is necessary to prepare a registration statement and prospectus complying with the requirements of the SEC Act, unless the issu - ance falls within the scope of a right offering or private placements. For completeness, it must be noted that in the case of a statutory amalgamation operating as a merger on the basis of A = B + C, no registration statement or prospectus is required. 7.3 Producing Financial Statements The bidder is required to produce and attach to the tender offer form audited financial statements pre - pared in accordance with Thai generally accepted accounting principles (GAAP) and consolidated finan - cial statements (if the acquirer has subsidiaries) for the latest fiscal year, as part of the tender offer docu - ments. 7.4 Transaction Documents In the process of a tender offer, it is not necessary to disclose the transaction documents in full; only a summary of the transaction is required. The offeror must disclose a summary of the material terms of any contract, agreement or memorandum of understanding entered into prior to the submission of the tender offer that contemplates a significant acqui - sition or disposition of the target’s securities, whether or not such arrangement relates to the securities to be acquired under the tender offer. Directors have fiduciary duties to the company and its shareholders and must perform their duties respon - sibly, with due care and loyalty. Directors must also comply with all laws, the objectives and articles of association of their company, the resolutions of the board of directors’ meetings and the resolutions of the shareholders’ meetings, in good faith and with care taken to preserve the interests of the company. A director is liable for any damage to the company resulting from their negligence or failure to perform 8. Duties of Directors 8.1 Principal Directors’ Duties
their functions. Directors do not have duties to a wider class of stakeholders. In performing their duties with responsibility and due care, directors must act in a manner similar to an ordinary person undertaking business under similar circumstances. Directors are presumed to have per - formed with responsibility and due care if the decision was made: • with the honest belief and on reasonable grounds that it was in the best interests of the company; • with reliance on information honestly believed to be sufficient; and • without personal interest, whether directly or indi - rectly, in such matters. 8.2 Special or Ad Hoc Committees In Thailand, it is not common practice for boards of directors to establish special or ad hoc committees during business combinations, though individual directors are prohibited from voting on matters in When considering an alleged breach of care in rela - tion to a fiduciary duty, courts often apply the “busi - ness judgement rule” standard. In addition to court judgments, the SEC has the authority to initiate legal proceedings against a director who performs his or her duties without due responsibility. Such offences may be subject to monetary penalties imposed by the Civil Sanctions Committee. However, this does not preclude shareholders from independently bringing claims against directors. 8.4 Independent Outside Advice which they have a conflict of interest. 8.3 Business Judgement Rule Boards of directors commonly seek advice from finan - cial advisers and legal counsellors in business com - binations. Decisions made by a board based on the guidance of these professional advisers are consid - ered to be made with due care to ensure the transpar - ency and regulatory compliance of the transactions. 8.5 Conflicts of Interest Under Thai corporate law, a shareholder with a special interest in any matter is not entitled to vote on that matter. While a resolution passed in breach of this
1309 CHAMBERS.COM
Powered by FlippingBook