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CHAPTER II MERGER, ACQUISITION AND DIVISION
Section Two Acquisition
Article 27
The notice of credit transfer in the acquisition of business or assets by a company under general assumption or transfer, or under Articles 185(1) (ii) or 185(1) (iii) may be made in the form of public announcement in lieu and the recognition from the creditors is not required in any undertaking of liabilities without being subject to Articles 297 and 301 of the Civil Code. The foregoing transactions require resolutions 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 under 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 the trading of shares on the stock exchange or OTC market is terminated because the listed or OTC company carries on the general transfer or transfers business or assets so that the transferee company is not a listed or OTC company anymore, 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 under the preceding three paragraphs are specified in the Articles of Incorporation, such higher criteria shall prevail.
Article 25 of this Act is applicable mutatis mutandis to the registration for transfer and alteration of rights and obligations pertaining to the assets of the transferor company acquired by the transferee company.
The preceding five Paragraphs and Article 21 of this Act shall apply mutatis mutandis to the transfer or assumption of business or assets under Article 185 (1) (ii) and (iii) of the Company Act and the acquisition made in the form of general assumption or transfer by the company and a foreign company.
Article 18 (6) of this Act shall apply mutatis mutandis to the procedure of the acquisition in this Article.
A company shall, after the resolution made under Paragraph 1, immediately notify as well as make a public notice to each creditor of the company of such a resolution, while specifying a time limit of not fewer than thirty (30) days within which the creditors may raise their objections, if any, to such a resolution.
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.
For the purpose of the merger/consolidation and acquisition to acquire the shares of the company whose share certificates have been publicly issued, in case ten percent or fewer of the total shares that the company had issued are acquired, it can be done alone or with others not in a publicly disclosed way.
The term “ alone ”under the preceding paragraph means as follows:
1. Acquiring the shares of the company in its (or her) own name.
2. Acquiring the shares of the company in others’ names, conforming to requirements under Article 2 of Securities and Exchange Act Enforcement Rules.
3. Acquiring the shares of the company in the name of a special purpose entity, conforming to International Accounting Standards (IAS) and International Financial Reporting Standards (IFRS).
The term “with others” under Paragraph 10 means: several people, with the same purpose of the merger/consolidation and acquisition, acquire already-issued shares of a public company by contract, agreement, or other forms of mutual consent.
Those who acquire the shares under Paragraph 10 can transfer their shares through intraday trading or after-market-close trading on the centralized securities exchange or OTC market.
For the purpose of the merger/consolidation and acquisition to acquire the shares of the company whose shares have been publicly issued, in case more than ten percent of the total shares that the company had issued are acquired, the acquirers shall report to the competent securities authority the purpose of the merger/consolidation and acquisition and other particulars required for reporting by the competent securities authority within ten days of the acquisition of the shares; if the particulars required for reporting were adjusted, they shall be updated immediately.
In case of the acquisition of the voting shares already issued by the company whose shares have been publicly issued without complying with the requirements under the preceding paragraph, the excess shares shall not have voting rights.
Article 28
Upon complying with the following requirements, the acquisition of the entire or substantial portion of the business or assets from a parent company by a subsidiary company may be made as resolved by the Board of Directors of the parent company. Resolutions adopted by the shareholders' meeting of the transferor and transferee companies as provided in Articles 185(1) through 185(4) are not required and the requirements set forth in Articles 186 through Article 188 of the Company Act are exempted:
1. The said subsidiary company is entirely held by the parent company;
2. The subsidiary company shall issue new shares to the parent company in exchange for the business or assets of the latter.
3. The said parent company and its subsidiary company have prepared the consolidated financial statements according to the Generally Accepted Accounting Principles.
The preceding paragraph and Article 21 of this Act shall apply mutatis mutandis to any transfer by a parent company of its entire or substantial portion of business or assets to its 100% held subsidiary company incorporated offshore, or the transfer by a foreign company of its entire or substantial portion of business or assets to its 100% held subsidiary company incorporated within the territory of the Republic of China.
Article 25 of this Act is applicable mutatis mutandis to the registration for transfer and alteration of rights and obligations pertaining to the assets of the transferor company acquired by the transferee company.
In case the trading of shares on the stock exchange or OTC market is terminated because the listed or OTC company transferred its business or assets to another company, the resolution of the general meeting 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. Paragraphs 1 and 2 on the resolution of Board of Directors of the transferor company shall not apply.
Article 18 (6) of this Act shall apply mutatis mutandis to the procedure of the acquisition in this Article.
Article 29
If as resolved by the general meeting, a company may by means of share exchange to be acquired by any other surviving or newly incorporation company as a 100% held subsidiary company pursuant to the following requirements:
1. The said resolution by the general meeting shall be adopted by a majority votes at the meeting attended by shareholders representing two-thirds or more of the total number of the issued shares; the same governs where the designated transferee company is a surviving company;
2. Requirements set forth in the latter of Article 197(1) of the Company Act, Article 227 when the latter of Article 197(1) of the Company Act shall apply mutatis mutandis, and Articles 22-2 and 26 of the Securities and Exchange Act are not applicable to the share exchange described herein.
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 Item 1 under the preceding paragraph, the resolution may be adopted by two-thirds or more of the shareholders present at the general meeting who represent a majority of the total number of issued shares.
In case the trading of shares on the stock exchange or OTC market is terminated because the listed or OTC company is acquired by any other surviving or newly incorporation company as a 100% held subsidiary company 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 under the preceding three paragraphs are specified in the Articles of Incorporation, such higher criteria shall prevail.
If the transferee company is a newly incorporate company, the general meeting held under Item 1, Paragraph 1 of this Article shall be deemed as the meeting of promoters of the transferee company; directors and supervisors may be elected in that same meeting without being subject to Article 128, Articles 129 through 139, 141, 155 and 163(2) of the Company Act.
In case that the surviving transferee company issued new shares as the consideration, that the number of those shares will not exceed twenty percent of the total number of issued voting shares of that company, and that the total amount of cash or the total value of the assets delivered will not exceed two percent of the net value of that company, a resolution for share exchange 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 the assets of the transferor company may not be insufficient to offset its liabilities, or the surviving transferee company needs to amend its Articles of Incorporation, Item 1 and 2, Paragraphs 1 of this Article relating to the resolution of the general meeting of the surviving transferee company still govern.
Article 18 (6) of this Act shall apply mutatis mutandis to the procedure of share exchange in this Article.
Article 30
Where ninety percent or more of the total number of the issued shares of a subsidiary company is held by its parent company, the parent company may carry on the acquisition by share exchange with the said subsidiary company upon a resolution to be adopted separately at the Board meeting of both the parent and subsidiary companies 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 respective companies.
After adoption of the resolution by the Board of Directors of the subsidiary company under the preceding paragraph, the details of the resolution and entries required to appear in the share exchange agreement shall be published within ten days. A notice shall be served to each of its shareholders and state that any shareholder who has an objection against that resolution may submit a written objection requesting the subsidiary company to buy back, at the then prevailing price, the shares of the subsidiary company 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 share exchange agreement to its shareholders.
The given time referred to in the preceding paragraph shall not be shorter than thirty days.
Article 18 (6) of this Act shall apply mutatis mutandis to the procedure of the share exchange in this Article.
Article 31
In the course of share exchange by and between a company and another company pursuant to the preceding Articles of this Act, if the designated transferee company is a surviving company, a share exchange agreement shall be concluded by Boards of Directors from both of the transferor and the transferee companies; if the designated transferee company is a newly incorporated company, a share exchange resolution shall be adopted by the Board of Directors of the transferor company; the aforesaid agreement and resolution shall be presented at the general meetings of the companies concerned. However, the above requirements are not applicable to the cases where resolutions of general meetings are not required under the preceding two Articles.
The share exchange contract and resolution as described in the preceding paragraph shall contain the following particulars and shall be delivered to each shareholder together with the meeting notice:
1. Any alteration made to the Articles of Incorporation of the surviving company or execution of the Articles of Incorporation of the newly incorporated company;
2. Where shares, cash or other assets given as the consideration by the surviving or newly incorporated company, the total number of new shares, classes of shares, and amount of each class; the total amount of cash and other assets, types of cash and other assets, and amount of each type, together with other relevant matters.
3. Where shares are transferred by the shareholders of the company to the surviving or newly incorporated company, the total number of shares, classes of shares, and amount of each class, together with other relevant matters;
4. The relevant provisions applicable if the amount of shares to be issued to the shareholders is less than the value of one share and payable in cash;
5. The share exchange agreement shall enter whether any remaining office term of directors or supervisors at the time of the share exchange should be continued; the share exchange resolution shall enter a list of directors and supervisors of the newly incorporated company;
6. In case of a joint share exchange with another company for the newly incorporated company, the share exchange resolution shall enter matters of concerns in such a joint share exchange.
The preceding two paragraphs, the preceding two articles and Article 21 shall apply mutatis mutandis to the share exchange between the company and a foreign company.
Any undistributed retained earnings after the share exchange by a company with another company shall be entered as the capital surplus of another company.
Special shares already issued before the share exchange by a company with another company, the transferee company shall assume the rights and obligations regarding these shares towards their holders; the transferee company, in the fiscal year of the share exchange, may distribute dividends after the supervisors audit the statements and reports produced by the Board of Directors, while such distribution is immune from restrictions provided in Articles 228 through 231 of the Company Act.
If a company is newly incorporated as a result of the share exchange by the company with another company, the portion of the capital quota for the share exchange of the newly incorporated company may not be applicable to Article 2(1) (i) of the Employee Welfare Fund Act.
The entries required to appear in the transfer agreement or resolution of under Paragraph 2 shall be delivered to each shareholder together with the notice of the meeting for transfer; the company that has its share certificates publicly issued, shall deliver the result of the review that made by special committee or audit committee and the review result of independent expert to shareholders. The entries, required to appear in a share exchange agreement or resolution under Paragraph 2, shall be delivered to each shareholder together with the notice of the general shareholders’ meeting for the share exchange. 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 32
The case where a company engaging in the share exchange acquires shares of the designated transferee company, is not subject to Paragraphs 3 and 4, Article 167 of the Company Act.
When the company engaging in the share exchange acquires shares under the preceding paragraph, it must not exercise the rights of a shareholder unless under any of the following circumstances:
1. Claim for surplus earnings distribution.
2. Claim for distribution of residual assets.
3. Distribution of the legal reserve or capital surplus by issuing new shares and by paying cash.
Article 33
After the share exchange resolution is adopted by a company, it shall make a public notice to shareholders, notify each shareholder and each pledgee of the shareholders as registered in the shareholders’ roster, no later than 30 days prior to the reference date of the share exchange, of the following matters:
1. The essentials of a resolution adopted by the shareholders' meeting or the Board of Directors.
2. Transfer of shares shall be executed on the reference date of the share exchange.
3. Shareholders shall file the shares they held with the company one day before the reference date of the share exchange; those shares not filed shall become null and void.
Article 34
Where a listed or OTC company enters into a share exchange plan with another surviving company or a newly incorporated company under Article 29, the trading of the shares then traded on the stock exchange or OTC market shall be terminated upon the completion of the share exchange and required procedure of the stock exchange or OTC market, and shares of the surviving company or the newly incorporated company in compliance with requirements set forth for a listed or OTC company shall be traded on the stock exchange or OTC market.