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How the Company Act amendments will affect your Taiwan business

by Daniel Chen and Gregory Buxton

On 6 July, 2018, Taiwan’s legislature enacted 148 amendments to the Company Act (the “Act”). The effective date of the amended Act, although not confirmed, is likely to be 1 January, 2019.

In this article, we highlight certain amendments which we expect to have a significant impact on our clients’ operations in Taiwan. We have organized these amendments into the following categories:

  1. Increased Flexibility in Equity Fundraising and Related Shareholder Arrangements;
  2. Relaxed Corporate Governance Formalities;
  3. Enhanced Substantive Shareholder Protections;
  4. More Appropriate Treatment of Foreign Companies;
  5. Increased Corporate Transparency;
  6. More Flexible Employee Equity Incentive Arrangements; and
  7. Increased Dividend Distribution Options.

1. Increased Flexibility in Equity Fundraising and Related Shareholder Arrangements

Prior to recent amendments, the Act posed a number of difficulties for companies engaged in equity financing. The Act previously contained a rule requiring a company to issue all of its existing authorized shares before it could authorize and issue new shares. This rule has been eliminated making it procedurally easier for companies to issue new equity capital.

The amended Act has also expanded the types of equity shares that may be issued. Private companies may now issue preferred shares with special voting, veto, and other control rights. A private company will now also be able to issue shares without par value, provided that all of the company’s shares are issued without par value.

In a related amendment, the new Act allows for further individual tailoring of corporate control by permitting voting agreements and voting trusts among shareholders. It is important to note that the amended Act clearly permits restrictive voting arrangements with respect to the election of directors and supervisors as well as voting arrangements concerning certain other company matters. This amendment was a direct legislative response to the majority view in Taiwan’s courts that voting agreements among shareholders regarding elections of directors and supervisors were unenforceable except in the limited case of a closed company.

2. Relaxed Corporate Governance Formalities

The amended Act eliminates a number of cumbersome corporate governance formalities and simplifies others. As amended, the Act does not require wholly owned, incorporated subsidiaries to appoint a minimum of three directors. Now, one director will suffice. Additionally, wholly owned subsidiaries are no longer required to have supervisors.

Corporate governance meetings have also been simplified. Shareholder meetings of a private company may be held by video conference in lieu of a physical meeting, provided that the company’s articles of incorporation expressly permit such video conference meetings. Private company boards may also pass written resolutions in lieu of holding meetings, provided that (i) written board resolutions are expressly permitted by the company’s articles of incorporation and (ii) all directors have agreed to the use of such written resolutions. We expect these meeting-related changes to be particularly welcomed by the many international businesses with wholly owned, incorporated subsidiaries in Taiwan.

3. Enhanced Substantive Shareholder Protections

While reducing some of the more ineffectual corporate formalities, the new Act introduces improvements in substantive shareholder protection. The amended Act permits a majority of shareholders to call a shareholders meeting with three months’ advance notice. Previously, shareholder meetings had to be called by the board unless the shareholders had received approval from the company’s relevant regulator to call a shareholders meeting directly.

Rules for shareholder meeting notices have also changed. The types of matters which must be explicitly set forth and explained in a shareholder meeting notice in order to be properly brought before shareholders for discussion or resolution at a meeting was expanded in the revised Act to include matters relating to (i) capital reductions; (ii) going private transactions; (iii) waiver of certain director non-compete obligations; and (iv) capitalization of profits and capital surpluses. Such measures are intended to prevent management from introducing unexpected meeting agenda items and otherwise concealing the nature of the business to be transacted at shareholder meetings.

4. More Appropriate Treatment of Foreign Companies

One of the more important features of the amended Act is the elimination of the recognition system for foreign companies. So long as a foreign company has been duly established in its home jurisdiction, such company now automatically has legal personhood in Taiwan without the need to make a special application for recognition from the Taiwan government. This amendment has the very practical and beneficial result that all properly established foreign companies will be recognized in Taiwan, thus eliminating the personal risk and liability that a representative of an unrecognized foreign company would incur if he or she were to act on behalf of an unrecognized foreign company.

The amended Act creates another benefit specifically for foreign companies. While foreign companies are still required to register Chinese names, they may now also register a name in a foreign language and enjoy certain exclusive rights to the use of that name in Taiwan. We strongly encourage all foreign companies operating in Taiwan to register their foreign language name after the amendments come into force.

5. Increased Corporate Transparency

In an effort to increase corporate transparency, the revised Act prohibits the issuance of bearer shares. Existing bearer shares may remain in circulation; however, when any holder of bearer shares exercises its rights with respect thereto, the issuing corporation must exchange such shares for registered shares. In addition, the amended Act requires corporations to make annual reports of major shareholders (defined as a shareholder holding 10% or more of a corporation’s outstanding shares), directors, and officers. Corporations must also file to update such reports within 15 days of any change.

We note that a controversial requirement to report ultimate beneficial owners was not included in the revised Act. We continue to watch this particular issue with interest.

6. More Flexible Employee Equity Incentive Arrangements

The new Act improves the ability of companies to create and manage an employee equity incentive plan. The amendments allow companies to repurchase previously issued shares and use the resulting treasury shares as employee equity compensation. Private companies may also now directly issue new restricted shares to employees.

The amended Act introduces further flexibility with respect to which employees can be included in equity incentive plans. Under the new Act, a company’s articles of incorporation may provide that existing incentives such as warrants and subscription rights can be issued to the employees of affiliated companies, including holding companies, subsidiaries, and other affiliates.

7. Increased Dividend Distribution Options

Another positive change found in the amended Act is the flexibility for a company to provide for annual, semi-annual, or quarterly dividend distributions in its articles of incorporation.

Overall, the changes made to the Company Act have reduced unnecessary corporate formalities while enhancing flexibility around shareholder and financing arrangements. While no date has been given, we expect most amendments will go into effect in early 2019. The new major shareholder reporting requirements may be implemented even earlier in light of an upcoming international anti-money laundering review scheduled for this fall.

If you have any questions as to how the amendments may affect your business in Taiwan, please contact Daniel Chen at dchen@winklerpartners.com and Christine Chen at cchen@winklerpartners.com.

Associates Michael Fahey, Brian Yang and trainee lawyer Pei-hsu Wu contributed to this article.

 

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