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Chapter Law Content

CHAPTER II MERGER, ACQUISITION AND DIVISION
Section One Merger/Consolidation
Article 18
A resolution for the merger/consolidation or dissolution of a company shall be adopted by a majority vote at the general meeting attended by shareholders representing two-thirds or more of the total number of the issued shares of the company.
For a company that has its share certificates publicly issued, if the total number of shares represented by shareholders present at the general meeting is short of the quorum provided in the preceding paragraph, the resolution may be adopted by two-thirds or more of the votes of the shareholders present at the general meeting who represent a majority of the total number of issued shares.
In case a listed or OTC company participates in the merger/consolidation and is dissolved thereafter while the surviving or newly incorporated company is not a listed or OTC company, the resolution of the general meeting under the preceding two paragraphs shall be adopted by two-thirds or more of the votes of the shareholders who represent the total number of issued shares of the listed or OTC company.
Where higher criteria for the total number of shares represented by the shareholders present at the general meeting and the total number of votes required to adopt a resolution thereat are specified in the Articles of Incorporation, such higher criteria shall prevail.
In case any special shares are issued by the company, the merger/consolidation shall be separately resolved by the holders of those special shares with the exceptions that a resolution by the general meeting is not required under this Act or that a resolution by the meeting of special shareholders is not required as expressly provided in the Articles of Incorporation. All the provisions set forth in the preceding four paragraphs shall apply mutatis mutandis to the resolution of the meeting of special shareholders.
Any company holding the shares of another company participating in the merger/consolidation, or the company or its assigned representative is elected as a director of another company participating in the merger/consolidation, then the company or its assigned representative may exercise voting rights in the resolution of the merger/consolidation by such another company.
In case the number of shares issued as a result of the merger/consolidation will not exceed more than twenty percent of the total number of issued voting shares of the surviving company immediately before the merger/consolidation, while the total amount of cash or the total value of the assets delivered to the shareholders of the dissolved company will not exceed more than two percent of the net value of the surviving company, a resolution for the merger/consolidation agreement shall be adopted by a majority vote of the directors present at the Board meeting attended by directors representing two-thirds or more of the directors of the surviving company. However, in case that the assets of the dissolved company may not be insufficient to offset its liabilities, or that the surviving company needs to amend its Articles of Incorporation, Paragraphs 1-4 of this Article relating to the resolution of the general meeting still govern.
Article 19
In case that a parent company merge/consolidate with its subsidiary company whose ninety percent or more of the total number of the issued shares is held by the parent company or that subsidiary companies of a parent company merge/consolidate with one another whose ninety percent or more of the total number of the issued shares is held by their parent company respectively, the merger/consolidation agreement may be concluded upon a resolution to be adopted separately at the Board meeting of each company by a majority vote of the directors present at the meeting attended by directors representing two-thirds or more of the directors of the respective companies.
After adoption of the resolution by the Board of Directors of subsidiary companies under the preceding paragraph, the details of the resolution and entries required to appear in the merger/consolidation agreement shall be published within ten days. A notice shall be served to each of their shareholders and state that any shareholder who has an objection against that resolution may submit a written objection requesting the subsidiary companies to buy back, at the then prevailing price, the shares of the subsidiary companies she holds. In the case of a company that has its share certificates publicly issued, it shall deliver review results of special committees or audit committees and opinions of independent experts in the merger/consolidation agreement to its shareholders.
The given time referred to in the preceding paragraph shall not be shorter than thirty days.
Where ninety percent or more of the total capital of a subsidiary company is held by its parent company, all the provisions set forth in the preceding three paragraphs shall apply mutatis mutandis when the parent company merges with the said subsidiary company.
Article 20
In the case of a merger/consolidation between two companies limited by shares or between a company limited by shares and a limited company, the surviving or the newly incorporate company under the merger/consolidation project shall be limited to a company organized in the form of a company limited by shares.
Article 21
The following requirements shall be fulfilled in case of any merger/ consolidation of a domestic company with a foreign company:
1. The said foreign company, pursuant to the law of incorporation, shall be a company limited by shares or a limited company and is duly allowed to be merged/consolidated with other companies;
2. The merger/consolidation agreement has been duly resolved by the general meeting, the Board of Directors of that foreign company or otherwise, pursuant to the law of incorporation;
3. The surviving company or newly incorporated company after the merger/consolidation shall exist only in the form of a company limited by shares.
The foreign company shall designate before the reference date of the merger/consolidation a representative for any service made within the territory of the Republic of China.
Article 22
The merger/consolidation agreement shall be made in writing and state the following particulars:
1. The name and capital of the companies involved in the merger/consolidation and the name and capital of the surviving or newly incorporated company after the merger/consolidation.
2. Where shares are to be issued by the surviving company, the newly incorporated company, or other companies as a result of the merger/consolidation, the total number of shares, classes of shares and amount of each class, or the amount of cash and other assets.
3. Where shares are to be issued to shareholders of the dissolved company by the surviving company, the newly incorporated company, or other companies as a result of the merger/consolidation, the total number of shares, classes of shares and amount of each class; the amount of cash and other assets; the method and proportion of distribution, together with other relevant matters.
4. Any matter related to the shares duly redeemed or purchased by the surviving company for the distribution to the shareholders of the dissolved company.
5. Any change to the Articles of Incorporation of the surviving company or Articles of Incorporation to be executed by the newly incorporated company according to Article 129 of the Company Act;
6. Criteria and conditions for the computation of share exchange ratio by the listed or OTC company.
The preceding paragraph is also applicable, mutatis mutandis, to the merger/consolidation with a foreign company.
The entries, required to appear in the merger/consolidation agreement under Paragraph 1, shall be delivered to each shareholder together with the notice of the general shareholders’ meeting for the merger/consolidation. In the case of the company that has its share certificates publicly issued, it shall send the review results of special committees or audit committees and opinions of independent experts to the shareholders.
Article 23
Upon the resolution of the merger/consolidation, a company shall immediately notify or make a public notice to each creditor of such a merger/consolidation and specify a period of not less than thirty days to allow objection filed by the creditors.
A company, that has not given notice or made public announcement in the manner referred to in the preceding paragraph, or fails to satisfy a creditor who has raised an objection to the merger/consolidation, to furnish an appropriate security, to create any trust exclusively for creditors’ satisfaction, or to certify that such a merger/consolidation is without prejudice to the rights of creditors, shall not assert the merger/consolidation as a defense against such a creditor.
The requirements specified in Paragraph One shall be applicable to the creditors of the dissolved company in the merger/consolidation provided in Article 18(7) of this Act; as regards the notice and public announcement, the reference date to start counting is the date of the resolution by the general meeting.
The requirements specified in Paragraph One shall be applicable to the creditors of the subsidiary company in the merger/consolidation provided in Article 19 of this Act; as regards the notice and public announcement, the reference date to start counting is the date of the resolution by the Board of Directors.
Article 24
All rights and obligations of any company dissolved due to the merger/consolidation shall be generally assumed by the surviving company or the newly incorporated company after the merger/consolidation; the status as a concerned party of the dissolved company in any on-going litigation, non-litigation, arbitration and any other proceedings shall be taken over by the surviving company or the newly incorporated company.
Article 25
The transfer of all rights and obligations pertaining to any properties acquired from the dissolved company by the surviving company or the newly incorporated company shall become operative on and after the reference date specified for the merger/consolidation; provided, however, that any acquisition, hypothecation, loss or change of any right under other applicable laws shall be registered before its disposition is permitted.
The following documents are required to be forthwith registered with the appropriate authorities by batch by the surviving company or the newly incorporated company in carrying out the registration of the alteration or merger/consolidation for the rights pertaining to the assets described in the preceding paragraph without being subject to the restriction that any registration for alteration of rights shall be jointly completed by the obligor and obligee as provided in Article 73(1) of the Land Act, Article 7 of the Personal Property Secured Transactions Act and any other applicable laws and ordinances:
1. Certificate of the registration for the merger/consolidation.
2. A list of registered assets of the dissolved company before the merger/consolidation and the list of assets in the registration for modification completed by the surviving company or the newly incorporated company.
3. Any other documents specified by the registration authorities.
Unless a longer period is otherwise provided by other applicable laws and ordinances, the registration specified herein shall be completed within six months upon the reference date of the merger/consolidation without being subject to the completion of registration for alteration of land rights within one month as provided in the former of Article 73(2) of the Land Act.
Article 26
The surviving company may report the merger/consolidation in the first general meeting held after the merger/consolidation.