Section 1.Incorporation |
| Article 128 | A company limited by shares shall have two or more promoters.
Any person without disposing capacity, with limited disposing capacity or having been adjudicated of the commencement of assistantship and such assistantship having not been revoked yet is not qualified as a promoter.
Any government agency or any juristic person may become a promoter, provided, however, that the juristic person eligible to act as a promoter shall be limited to that conforming to any of the following requirements:
- a company or a limited partnership;
- a juristic person which contributes any proprietary technology or intellectual property right created on its own through research and development as its investment capital contribution; or
- a juristic person which is operating a category of business that has been recognized and approved to be in conformity with the objective of its incorporation by the central authority in charge of the end enterprise involved.
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| Article 128-1 | A company limited by shares which is organized by a single government shareholder or a single juristic person shareholder shall be free from restrictive requirement set out in Paragraph One of the preceding Article. The functional duties and power of the shareholders’ meeting of such company shall be exercised by its board of directors, to which the provisions governing the shareholders’ meeting as set out in this Act shall not apply.
The company referred to in the preceding paragraph may choose not to have the board of directors but to have one or two directors; for a company with only one director, such director shall be the chairman and the functional duties and powers of the board of directors shall be exercised by such director, and the provisions governing the board of directors as set out in this Act shall not apply to such company; for a company with two directors, the provisions governing the board of directors as set out in this Act shall apply mutatis mutandis.
The company referred to in Paragraph One may choose not to have supervisors; the provisions governing supervisors as set out in this Act shall not apply to such company.
The directors and supervisors of the company referred to in Paragraph One shall be appointed by such government shareholder or juristic person shareholder.
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| Article 129 | The promoters of a company limited by shares shall draw up the Articles of Incorporation containing the following particulars and shall affix thereon their respective signatures or personal seals:
- The name of the company;
- The scope of business to be operated by the company;
- For a company issuing par value shares, the total number of shares and the par value of each share certificate; for a company issuing no par value shares, the total number of shares.
- The location of the company;
- The number of directors and supervisors, and the term of their respective offices; and
- The date of establishment of the Articles of Incorporation.
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| Article 130 | The following matters shall not take effect, unless they are stipulated in the Articles of Incorporation:
- Establishment of branch office;
- The cause(s) for dissolution of the company, if any;
- The kind of special shares and the rights and obligations covered by such shares; and
- Special benefits to be accorded to promoters, and the name of such beneficiaries.
The shareholders’ meeting may make change of the special benefits accordable to promoters under the provision set out in Item Four of the preceding Paragraph provided that such change shall not result in any prejudice to the benefits already accrued to the promoters.
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| Article 131 | The promoters, after having subscribed in the first issue to the total number of shares, shall make full payment for the numbers of shares respectively subscribed to, and elect directors and supervisors.
The provisions of Article 198 shall apply mutatis mutandis to the aforesaid election.
Equity capital to be contributed other than cash by promoters may be in the form of the property or technical know-how required by the business of the company.
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| Article 132 | In case the promoters have not subscribed to the total number of shares in the first issue, the remainder shares shall be subscribed to by solicitation.
When the aforesaid subscription to shares is to be solicited, special shares may be issued in accordance with the provisions of Article 157.
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| Article 133 | The promoters, when publicly soliciting subscriptions to shares, shall first have the following documents and information prepared, and then file the same along with an application to the authority in charge of securities exchange for examination and approval:
- Business plan;
- Full names and resumes of the promoters, and the number of shares subscribed, and the kind of contribution;
- Prospectus;
- Names and locations of banks or post offices authorized to collect payment for shares subscribed;
- Names of underwriters or agents, if any, and the covenants between the promoters and such underwriters or agents; and
- Other matters as may be prescribed by the authority in charge of securities exchange.
The total number of shares subscribed by the aforesaid promoters shall not be less than one-fourth of the total number of shares in the first issue.
Within thirty days after receiving a notice from the authority in charge of securities exchange, all documents and information specified in various items of Paragraph 1 of this Article shall be annotated with the reference number and date of the approval letter and publicly announced provided, however, that the covenants referred to in Item 5 of the Paragraph 1 may be exempt from public announcement.
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| Article 134 | Banks or post offices authorized to collect payments for shares subscribed to shall have the obligation to certify the amount of money received, and the amount so certified shall be deemed as the capital money already received.
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| Article 135 | Upon finding either of the following discrepancies in an application for public offering of shares, the authority in charge of securities may disapprove the application or may revoke its approval previously granted to the applicant:
- Where any statement made in the application is found to be contrary to the applicable laws and/or regulations or to be false; or
- Where there is any change in the matters described in the application; and no correction thereto has been made within a given time limit after having been required to do so.
Under the circumstance set forth in Item 2 of the preceding Paragraph, the authority in charge of securities may impose on each of the promoters a fine in an amount not less than NT$ 20,000 but not more than NT$ 100,000.
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| Article 136 | In case of annulment of approval in accordance with the preceding articles, the solicitation shall be cancelled if not yet in progress; if solicitation is already in progress, persons so drafted may demand a refund of the original issuing value of shares plus interests thereon to be calculated at the legal rate.
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| Article 137 | The prospectus shall state the following particulars:
- Particulars set forth in Article 129 and Article 130;
- Number of shares subscribed to by each of the promoters;
- If share certificates are issued above par value, the issuing value;
- The time-limit for full subscription by solicitation and the statement that if the shares are not subscribed in full within such time-limit, the subscribers may rescind their subscription; and
- In case special shares are issued, the total amount of such shares and the matters specified in various items of Paragraph One of Article 157.
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| Article 138 | The promoters shall prepare a share subscription form indicating therein the matters required in Paragraph One, Article 133 and the reference number and the date of the approval letter given by the authority in charge of securities, and shall make such form available to the subscribers for them to fill in the number and amount of the shares to be subscribed and their respective domiciles or residences, and to affix thereon their respective signatures or personal seals.
In case the share certificates are issued at a premium, the subscribers shall indicate in the share subscription form the amount of share price they agree to pay.
In the event the promoters violate the provisions of Paragraph One of this Article by failing to prepare and make available the share subscription forms, the authority in charge of securities shall impose on them a fine in an amount not less than NT$ 10,000 but not more than NT$ 50,000.
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| Article 139 | Subscribers shall have the obligation to pay for the shares they have subscribed to in the subscription form.
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| Article 140 | For a company issuing par value shares, its issue price of share certificates shall not be less than the par value thereof, unless otherwise provided for by the competent authority in charge of securities affairs for public companies.
For a company issuing no par value shares, its issue price of share certificate shall have no restrictions.
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| Article 141 | When the total number of shares in the first issue has been subscribed to in full, the promoters shall immediately press each of the subscribers for payment. Where share certificates are issued above the par value thereof, the amount in excess of such value shall be collected at the same time with the payment for shares.
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| Article 142 | Where subscriber delays payment for shares as provided in the preceding article, the promoters shall fix a period of not less than one month and call upon each subscriber to pay up, declaring that in case of default of payment within the stipulated period their right shall be forfeited.
After the promoters have made the aforesaid call, the subscribers who fail to pay accordingly shall forfeit their rights and the shares subscribed to by them shall be otherwise sold.
Under the aforesaid circumstances, compensation for loss or damage, if any, may still be claimed against such defaulting subscribers.
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| Article 143 | After the share price payable by all subscribers under the preceding Article has been fully paid up, the inaugural meeting of the company shall be convened by the promoters within two months.
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| Article 144 | The provisions of Paragraphs One, Four, Five of Article 172, Article 174, Article 175, Article 177, Article 178, Article 179, Article 181, Paragraphs One, Two, Four, Five of Article 183 and Articles 189 to 191 shall apply mutatis mutandis to the procedure and resolutions of the inaugural meeting; however, in the election of directors and supervisors, the provisions of Article 198 shall apply mutatis mutandis.
The promoter who fails to comply with Paragraphs One, Five of Article 172 or Paragraphs One, Four, Five of Article 183 as applied mutatis mutandis in the preceding paragraph shall be imposed with a fine in an amount of not less than NT$ 10,000 but not more than NT$ 50,000.
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| Article 145 | At the inaugural meeting of the company, the following matters shall be reported by the promoters:
- The Articles of Incorporation;
- The roster of shareholders;
- The total number of shares issued;
- The name of subscribers and the kinds, quantities, values or appraisal standards of the property, technical know-how other than cash provided by subscribers as their capital contributions, if any;
- The incorporation costs to be borne by the company, and the remuneration payable to promoters;
- The total number of special shares, if any, to be issued; and
- The roster of directors and supervisors of the company, which roster shall indicate the domiciles or residences, the serial number of ID Cards or the reference number of the status certificates issued by the government of them.
Upon finding of any false statements in the report made under the preceding Paragraph, the promoters shall each be imposed with a fine in an amount not more than NT$ 60,000.
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| Article 146 | At the inaugural meeting of a company, election of the directors and supervisors shall be effected. The directors and supervisors elect shall, upon election, immediately investigate the accuracy of the matters reported by promoters under the preceding Article, and shall report to the inaugural meeting of the investigation results.
Where any promoter is elected a director or a supervisor who has a personal interests in the matters subject to investigation, then the inaugural meeting shall elect another person as the substitute of said promoter to perform the investigation.
If anything contained in the promoters report is found excessive or false in the course of investigation conducted under the preceding two Paragraphs, appropriate cut-off or reduction shall be made by the inaugural meeting;
If any promoter impedes the investigation, or if any director, supervisor or investigator makes false report, he/she shall be imposed with a fine in an amount not more than NT$ 60,000;
Upon request of the directors, supervisors or investigators for extension of the deadline date for submission of the investigation report under either of the provisions of the preceding two Paragraphs, the inaugural meeting may decide, by applying the provisions of Article 182 of this Act mutatis mutandis, to postpone or to reconvene the inaugural meeting.
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| Article 147 | The inaugural meeting may curtail the remuneration given or special privileges accorded to the promoters and expense incurred in the incorporation of the company, if any is found excessive. If the payment on shares other than in cash is overestimated in value, the inaugural meeting may reduce the number of shares to be given or order the subscriber to make up for the deficiency.
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| Article 148 | All shares in the first issue, which have not been subscribed to and those which, though subscribed, have not been paid for, shall be subscribed and paid for the promoters jointly and severally. The same shall apply to those shares which have been subscribed but eventually rescinded.
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| Article 149 | In the circumstances specified in Article 147 and Article 148, the company may claim against the promoters for compensation for loss or damage, if any.
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| Article 150 | In the event that a company not be formed, the promoter shall be jointly and severally responsible for the consequence of their acts in forming the company and all expenses incurred. The same shall apply to that portion of the expenses which were curtailed on account of being excessive
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| Article 151 | The inauguration meeting may amend the Articles of Incorporation or resolve not to incorporate the company.
The provisions of Article 277, Paragraphs 2 through 4 shall apply, mutatis mutandis, to the aforesaid amendment of Articles of Incorporation; and the provisions of Article 316 shall apply, mutatis mutandis, to the aforesaid resolution not to incorporate the company.
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| Article 152 | Where three months have elapsed after the total number of shares in the first issue has been contributed but the payment for which has not been fully met, or, where the payment has been fully met but the promoters have not called the inaugural meeting within two months, the subscribers may rescind their subscription.
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| Article 153 | After the conclusion of the inaugural meeting, no subscriber may rescind his subscription.
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| Article 154 | The liability of shareholders to the company shall, unless otherwise provided in the paragraph 2, be limited to payment in full of the shares they have subscribed.
If a shareholder abuses the company’s status as a legal entity and thus causes the company to bear specific debts and to be apparently difficult for the company to pay such debts, and if such abuse is of a severe nature, the shareholder shall, if necessary, be liable for the debts.
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| Article 155 | The promoters shall be jointly and severally liable to the company for compensation for loss or damage in consequence of an neglect on their part in the performance of their duties connected with the formation of the company.
The promoters shall, even after incorporation, be jointly and severally liable for debts of the company incurred prior to incorporation.
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