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Article 1
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These Supplementary Provisions are promulgated pursuant to Article 29, Paragraph 1 of the Taiwan Stock Exchange Corporation Criteria for Review of Securities Listings.
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Article 2
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The term "market listing fiscal year and a certain number of the most recent or future fiscal years" as used in these Criteria shall refer to the period from receipt of the application for listing by the TSEC until one day prior to the competent authority's issuance of a letter of approval for the listing agreement, and the given number of full fiscal years immediately preceding or subsequent to that period.
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Article 3
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The term "within a certain number of years prior to" in these Criteria refers to a certain period terminated by the date upon which the TSEC receives a market listing application for review, provided that the period from receipt of the application by the TSEC to the day before the issuance date of the competent authority's letter of approval of the listing agreement submitted by the TSEC shall also be included.
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Article 3-1
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The term "information software enterprises" in these Criteria refers to those enterprises applying under one of the four principal areas of operations as defined by the Ministry of Economics Industrial Development Bureau, which are packaged software, professional services, turnkey systems, and systems integration, and whose operating revenue in the most recent two fiscal years conforms to one of the following two conditions:
1. Information software accounts for 50% or more of total operating revenues.
2. Gross profits from information software operations account for 50% or more of total gross operational profits.
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Article 4
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The term "associated persons" in these Criteria refers to persons fulfilling any one of the following conditions:
1. The person is a judicial person or other institution, having the relationship of associated person as defined under Item 6 of the Statements of Financial Accounting Standards.
2. A natural person with the relational status of spouse or minor child.
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Article 5
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The terms "parent company," "subsidiary," and "affiliated company" as used in the Criteria shall be defined in accordance with the provisions of Items 5 and 7 of the Statements of Financial Accounting Standards.
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Article 6
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The term "group enterprise" as used in these Criteria refers to a corporate entity for which, during which the application is made and the preceding fiscal year, there existed a controlling or subsidiary relationship between it and the issuing company applying for listing during the fiscal year.
Under any one of the following conditions, a controlling or subsidiary relationship will be deemed to exist:
1. The relationship is one of parent company, subsidiary company, or affiliated company.
2. The total combined holdings of the applicant company and its associated persons exceed half of the total outstanding shares of voting stock or total capital of another company; or the total holdings of another company and its associated persons exceed half of the total outstanding shares of voting stock or total capital of the applicant company.
3. The applicant company directly or indirectly controls personnel, financial, or business operations; or another company directly or indirectly controls the personnel, financial, or business operations of the applicant company.
A relationship of "direct or indirect control of personnel, financial, or business operations" between two companies refers to any one of the following circumstances:
(1) Obtaining more than half of the director's positions in the other company.
(2) Having an appointee selected as general manger of the other company.
(3) Owning management rights to the other company under a joint venture agreement.
(4) Providing financing for the other company that equals or exceeds one-third of the total assets of the other company.
(5) Providing endorsement for a guarantee for the other company that equals or exceeds one-third of the total assets of the other company.
4. The amount of cross-investment between the applicant company and another company reaches an amount equal to or greater than one-third of the total voting shares or capital of each company, and personnel, financial, or business operations of the other company can be directly or indirectly controlled.
Where any of the following circumstances exist, it will be deemed that there exists a subsidiary or controlling relationship between the applicant company and another company, provided that where the applicant company submits evidence proving that no controlling or subsidiary relationship exists, this restriction will not apply:
1. More than half of the total number of directors, supervisors, and general managers for the applicant company and another company are the same. Calculation of this figure shall include the spouses, children, and relatives in the second degree of the aforementioned persons.
2. More than half of the outstanding shares of voting stock or capital of the applicant company and another company are held by the same the shareholders or capital contributors.
3. Another investing company and its associated persons, applying the equity method of valuation with respect to the applicant company, hold more than one-half of the total outstanding shares of voting stock in the applicant company; or where the applicant company and its associated persons, applying the equity method of evaluation, hold a total number of shares in another invested company exceeding one-half of the total number of outstanding shares of voting stock.
Calculation of the amount of stock held by or the amount of capital contributions to another company made by the applicant company shall include each of the following stock or capital amounts:
1. The shares held by or capital contributions made to another company by the subsidiary of a company.
2. Shares held by or capital contributions made by a third party for the applicant company.
3. Shares held by or capital contributions made by a third party for a subsidiary company of the applicant company.
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Article 7
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The standard for the required period for merger through absorption of another company as set forth under Article 9, Paragraph 1, Subparagraph 2 of these Criteria shall be whether one full fiscal year has elapsed between the date when amendment of company registration is effected subsequent to the merger by absorption and the date of application for market listing; in assessing the profitability of the company prior to merger, operating revenues and pre-tax profit for the period from the first day of the fiscal year in which the merger takes place to the date of record of the merger shall be considered by means of a conversion, based on the number of business days during that period, into an annualized figure.
The term "meeting the listing criteria" in the proviso of the same subparagraph shall mean that a company's profitability meets the criteria set forth in Article 4 of these Criteria, provided that this restriction shall not apply to companies that meet the listing criteria set forth in Article 6 of these Criteria.
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Article 8
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The term "financial or business affairs are not separate and independent from those of another person" as used in Article 9, paragraph 1, subparagraph 3 of these Criteria shall mean any of the circumstances below:
1. More than one-half of the directors or supervisors of the applicant company are representatives, directors, supervisors, or shareholders with more than a 10% stake in the outstanding shares of the specified company or institution, and are [therefore] associated persons of the specified company or institution.
2. The applicant company has not yet drafted concrete written regulations to govern the its financial and operational affairs with the specified company or institution and its affiliated companies, or such regulations have not been approved by its board of directors or concretely and effectively implemented by the applicant company; or the applicant company has not yet issued an undertaking and a declaration stating that all financial and operational interaction between them takes place on an arms-length basis.
3. There are serious irregularities when the applicant company's financial condition and the aforesaid regulations are compared with those for other companies in the same industry.
4. Operating revenues derived from the specified company or institution and its affiliates during the fiscal year in which application is made and the preceding fiscal year exceed 50%.
5. Principal materials or products or total procurement amounts from the specified company or institution and its affiliates during the fiscal year in which application is made and the preceding fiscal year exceed 70%, with the possible risk of a high degree of concentration in sourcing for procurement.
6. Sources of capital are heavily concentrated in non-financial institutions.
7. The applicant company has entered into contracts that severely limit its operations or that are patently unreasonable such that it creates an adverse influence on the company.
8. The applicant company jointly shares a line of credit with another person in which its own credit utilization cannot be distinguished.
The term "specified company or institution" as used in the preceding paragraph means that any one of the following circumstances occurred in the fiscal years during and just preceding the year of application:
1. The company held 20% or more and 50% or less of the total outstanding shares in the applicant company.
2. The total shares held by the company and its directors, supervisors, and shareholders holding more than a 10% share equals 30% or more of the total outstanding shares, and there is a record of financial or operational transactions between the two companies.
Calculation of the shareholdings of the above persons shall include shares held by their spouses, minor children, and shares held for their benefit under the names of others.
3. 30% or more of the operating revenues of the applicant company are derived from the given company and its affiliates.
4. More than 50% of the total volume or total cost of procurement of principal materials (materials representing 30% or more of total procurement costs and essential in product manufacturing) and principal products (representing 30% or more of total operating revenues) is derived from the given company and its affiliates.
Subparagraphs 1, 4, and 5 of Paragraph 1 shall not apply to companies in a parent-subsidiary relationship; subparagraphs 4 and 5 shall not apply where the circumstances set forth therein occur due to unique industry characteristics, supply and demand conditions on the market, government policies, or other reasonable factors.
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Article 9
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The phrase "serious labor disputes sufficient to affect normal financial and business operations of the company" as used in Article 9, paragraph 1, subparagraph 4 refers to any one of the following circumstances:
1. The occurrence of a serious labor dispute.
2. Failure to make allocations to the employee welfare fund, to organize an employee welfare committee, or to make monthly allocations to the special account holding labor pension funds in accordance with the law.
3. The occurrence of a serious workplace accident due to inadequate safety or sanitation facilities, or a disposition issued with respect to violation of the Labor Safety and Sanitation Law requiring suspension of part or all of operations, or dangerous machinery or facilities have been installed without passing inspection, provided that where approval is obtained after an application for re-inspection, the above shall not apply.
4. Failure to make payment for labor insurance premiums and default penalties following initiation of a lawsuit for the same.
The phrase "serious environmental pollution sufficient to affect normal financial and business operations of the company" as used in the same subparagraph means any of the following circumstances with respect to the company or venues for its activities:
1. Failure to obtain permits required by law for [pollution] discharge or installation or operation [of pollution control equipment].
2. A pollution incident in which the environmental protection authority has imposed penalties accruing on a daily basis, or failure to make rectification within a specified period of time where rectification has been ordered.
3. Involvement in a public nuisance incident where the company has no effective pollution control facilities, or failure to provide records of normal operation and regular maintenance of pollution prevention equipment.
4. A pollution incident in which the competent authority has ordered the company to stop work, suspend operations, or terminate operations or the relevant pollution permits have been revoked.
5. Careless disposal of waste materials, or failure to store, clean up, or process such materials in accordance with regulations, or a serious pollution incident occurring during processing of such materials, resulting in death, serious bodily harm, or endangerment of health leading to illness.
6. Designation of the company's land as a controlled site or a pollution remediation site due to soil or underground water pollution.
7. Manufacturing, processing, or importation by a juristic person of banned or counterfeited agricultural chemicals, resulting in a conclusive judgment against the responsible person.
The phrase "failure to make rectification" in the same subparagraph shall mean the existence of any of the above circumstances after receipt of the company's application for listing by the TSEC, provided that with respect to a serious environmental pollution incident as referred to in Subparagraph 2 of the preceding paragraph, the standard for determining whether rectification has been made shall be that the company has requested inspection and testing by an agency authorized by the competent environmental authority, that such agency has prepared a report on the inspection, and that the report is the basis for a report to the environmental authority on completion of rectification procedures, and further, that the company has received no additional penalty within three months of issuing the report.
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Article 10
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The term "major trading irregularity" as used in these Criteria shall mean the occurrence of any of the following circumstances with respect to the applicant company, provided that publicly-owned enterprises operated under the relevant accounting laws shall not be subject to this restriction:
1. Where the purpose, terms, or price of purchase or sale of goods, or where the occurrence of a transaction, or its form or substantive nature or the procedure involved, are at variance with those of a normal transaction or are obviously unreasonable.
2. Where, in regard to transactions for acquisition or disposal of assets that require public announcement and reporting in accordance with the competent authority's Guidelines for Handling Acquisition and Disposal of Assets by Public Companies, the company fails to reasonably demonstrate the legality of its internal decision-making process, the necessity of the transaction, ample disclosure of related financial statements, or reasonable price and payment terms and conditions.
3. Occurrence of any of the following circumstances with regard to real estate transactions during the most recent five years, as determined by the signing date of any such transaction:
(1) A real estate purchase from an associated person involves any circumstances set forth in the Standards for Determining the Existence of Irregularities in Real Estate Transactions promulgated by the competent authority.
(2) A sale of real estate to an associated person in which the price of the sale is lower than the pre-calculated or assessed values obtained in accordance with the methods given under the standards for determining the existence of irregularities in real estate transactions under the Guidelines for Purchase of Real Estate by Public Companies.
(3) Terms of payment in a purchase or sale of real estate with an associated person obviously different from those of ordinary real estate transactions, and for which there is no legitimate reason.
(4) The applicant company purchases or sells land at approximately the same time in an area adjacent to land purchased or sold by an associated person, where there is an obvious difference in price, and where there is no legitimate reason for such difference.
(5) The revenues from sales of products or leasing of real estate to an associated person in the final quarters of the most recent five fiscal years exceeds 20% of yearly operating revenues, and where no legitimate reason exists for the excess.
(6) Purchase or sale of real estate to a non-associated person where other evidence exists to show that the transaction is obviously at variance with normal transactions, and where there no legitimate reason exists for the difference.
4. Where loans are extended to another person for purposes other than the financing necessary for business transactions between companies.
The provisions regarding the purchase or sale of real estate involving an associated person under subparagraph 3 of the preceding paragraph shall also apply where either of the two previous owners had the status of associated person, provided that there may be exemption from application of the competent authority's Standards for Determining the Existence of Irregularities in Real Estate Transactions where the period from the date on which the trading counterpart was to acquire the property under the contract to the date of the date of execution of the present contract exceeds five years.
Where an applicant company profits from any of the circumstance set forth under paragraph 1, it shall meet the listing criteria for profitability after deduction of those profits.
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Article 11
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The phrase "failure to make rectification" as used in Article 9, paragraph 1, subparagraph 5 shall mean any one of the following circumstances:
1. Where a person other than the applicant company obtains benefit from an irregular trade, and the person obtaining benefit has returned such benefits to the person entitled to it.
2. Where the investigating or judicial agency has determined that an act irregular trade does not constitute a criminal offense.
3. The irregular trade has already been restored to normal conditions.
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Article 12
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The phrase "does not meet listing criteria" as used in Article 9, paragraph 1, subparagraph 7 of these Criteria shall mean that the profitability of a company applying for listing under Article 4 of the same Criteria does not meet the criteria under that same article on the basis of imputed costs, and that the profitability of a company applying for listing under Article 5 does not meet the listing criteria under Article 5, paragraph 4 on the basis of imputed costs.
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Article 13
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The term "failure to prepare financial reports in accordance with relevant laws and regulations and generally accepted accounting principles" as used in Article 9, paragraph 1, subparagraph 8 shall mean any of the following:
1. The financial report is not prepared in accordance with relevant laws and regulations and generally accepted accounting principals, and a certified public accountant issues a negative opinion or is unable to issue an opinion, or a certified public accountant issues an audit report with a qualified opinion, thereby affecting sufficient disclosure in the financial statement.
2. Failure by a company to make correction in its financial report after being instructed to do so by the competent authority.
3. An audit of the company's working papers performed by a certified public accountant and subsequent review by the TSEC which finds material omissions such that it cannot be ascertained whether sufficient disclosure is achieved in the financial report.
The term "not yet able to effectively implement an accounting system, an internal control system, or an internal auditing system" in the same subparagraph shall mean the occurrence of any of the following circumstances:
1. During the year in which it applies for market listing, the applicant company fails to establish a sound written accounting system in accordance with the Criteria Governing the Preparation of Financial Reports by Securities Firms and the Criteria Governing the Preparation of Financial Reports by Issuers.
2. Where the TSEC finds, through on-site inspection, that the company fails to operate in reasonable accordance with its written accounting system.
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Article 14
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The term "serious deterioration" as used in Article 9, paragraph 1, subparagraph 9 of these Criteria shall mean any of the following circumstances:
1. Operating revenues and operating profits for the most recent fiscal year or the fiscal year during which application is made show a marked deterioration relative to other enterprises in the same industry.
2. Net pre-tax profits for the most recent fiscal year or the fiscal year during which application is made show a marked deterioration relative to other enterprises in the same industry.
3. There is continuing negative growth in operating revenues and operating profits for each of the three most recent fiscal years.
4. There is continuing negative growth in net pre-tax profits for each of the three most recent fiscal years.
5. Aggregate capital increases for the three most recent fiscal years equal NT$1 billion or more, or are equal to 200% of the company's capital stock at the closing date of the fourth fiscal year prior to that period, and growth in operating revenues, comparing the most recent fiscal year with the fourth prior fiscal year, falls below 100% or NT$500 million, and the profit per share has been declining in each of the previous three years, provided that capital increases in accordance with mandatory government laws and regulations shall not be subject to these limitations.
6. The company's products or technology are outdated, and it has no plan for improvement.
The provisions of the preceding paragraph do not apply where, as prescribed for companies applying for market listing under Article 4 of these Criteria, the ratio of paid-in capital to operating revenues and net pre-tax profit in the most recent fiscal year are not lower than 12%.
The provisions of subparagraphs 3 and 4 of paragraph 1 do not apply where, due to economic conditions prevailing in the industry, similar enterprises also exhibit deterioration.
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Article 15
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The term "acting in violation of the principle of good faith" as used in Article 9, paragraph 1, subparagraph 10 of these Criteria shall mean any of the following circumstances:
1. With respect to the company:
(1) The bills clearing house announces that a checking account opened by the company applying for listing has been declined, or that checks or negotiable instruments issued by the company with a financial institution as its paying agent were dishonored due to insufficient funds and the records thereof have not yet been cancelled.
(2) The company has been delinquent in the repayment of any loan extended to it by a financial institution.
(3) A criminal sanction has been imposed on the company by a final judgment of violation of the Labor Standards Law, provided that where, within the most recent two years, an examination agency has found through re-inspection that the violation has been corrected.
(4) A final judgment has found the company in violation of the Tax Collection Law.
(5) The company breaches the warranties and representations made in its application for listing.
(6) The company has made materially false and misleading representations, violated the law, or lost creditworthiness resulting in injury to the company's interests or the rights and interests of the shareholders or the public.
2. With respect to the directors, supervisors, general manager, or de facto responsible person:
(1) Any of the circumstances set forth in subparagraphs 1-5 of the preceding paragraph.
(2) Commission of the crimes of corruption, malfeasance in office, fraud, breach of trust, or misappropriation for which a fixed sentence or more severe criminal penalty was delivered.
(3) Other acts in serious violation of laws and regulations or the principle of good faith.
(4) Other serious violations of laws or regulations or the principles of good faith.
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Article 16
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The term "transfer of shares by directors, supervisors, and shareholders holding more than 10% of the issued and outstanding shares" as used in Article 9, paragraph 1, subparagraph 11 shall be taken to include shares transferred during the given period by persons of the aforesaid status, their spouses, minor children, and those holding shares for the benefit of the aforesaid persons, provided that the above shall not include shares transferred after loss of the position of director or supervisor, or when a particular person's shareholding, due to transfer of shares, no longer exceeds 10% of the outstanding shares.
The term "share transfer" as used in the same subparagraph shall mean any transfer by means of sale, gift, or waiver of pre-emptive rights to new shares in a capital increase in favor of subscription by other specific persons.
The term "large number" of shares as used in the same subparagraph shall mean that the total of the shares transferred by the persons specified above exceeds 10% of the total shares of the company issued and outstanding at the time when application for listing is filed.
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Article 17
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The term "the board of directors or supervisors cannot independently perform their functions" as used in Article 9, paragraph 1, subparagraph 12 of these Criteria shall mean the occurrence of any of the following circumstances:
1. Any of the following conditions during the year to date on the part of persons acting as an independent director or independent supervisor of the company applying for listing that compromise their independence:
(1) Being an employee of the company applying for listing or a director, supervisor, or employee of an affiliated enterprise of the applicant company.
(2) Directly or indirectly holding 1% or more of the total outstanding shares of the applicant company, or being one of the top ten natural person shareholders of the applicant company.
(3) Being a spouse or direct relation within the second degree of kinship of any of the persons in the preceding two subparagraphs.
(4) Being a director, supervisor, or employee of a juridical person shareholder that directly holds 5% or more of the total outstanding shares of the applicant company or being a director, supervisor, or employee of one of the top five juridical person shareholders.
(5) Being a director, supervisor, manager, or shareholder holding 5% or more of the shares of a specific company or institution that has financial or operational interactions with the applicant company.
(6) Being a professional, an independent contributor, a partner, or a company, or an executive director, partner, director, or manager of an institutional consortium or the spouse of same that provides financial, business, or legal or consulting services to the applicant company or an affiliated enterprise of same.
(7) Concurrently serving as an independent director or independent supervisor for a combined total of five or more other enterprises.
2. Where a person serving as independent director or independent supervisor of the applicant company has less than five years of the work experience required for the commercial, financial, legal, or corporate operations areas.
3. Where a person serving as independent director or independent supervisor of the applicant company has failed to receive training of three [course] hours per year to acquire professional knowledge in the areas of law, finance, or accounting and obtain the relevant certification documents.
4. Where more than two-thirds of the total number of directors of the applicant company are mutually related in any of the ways listed below, or where all of the supervisors of the applicant company are mutually related in any of the ways listed below or share with any one director such a relationship:
(1) Spouse
(2) Direct relations within the second degree of kinship
(3) Collateral relations within the third degree of kinship
(4) Representatives of the same juristic person
(5) Associated person The provisions of subparagraph 4 of paragraph 1 shall also apply where the government or a juristic person is the shareholder, and in their capacity as government or juristic person are elected as director or supervisor and designate a natural person as representative to exercise those functions on their behalf, and shall also apply to their representatives who, in that capacity, are elected to serve as director or supervisor.
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Article 18
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The term "net worth before distribution of earnings during the fiscal year in which application for listing is filed" as used in Article 16, subparagraph 3 of these Criteria shall mean net worth as shown in the financial statement or as calculated in the financial forecast prepared most recently with respect to the fiscal year during which application was filed.
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Article 19
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The term "land acquired" as used in Article 9, subparagraph 4 of these Criteria shall mean land which the land administration authority has registered and for which lawful title has been obtained, provided that for construction projects carried out jointly between a developer and a land owner, land assets shall be calculated in the following manner as of the date of the TSEC's receipt of the application for listing:
1. For contracts for joint construction and allocation of housing units, the percentage of construction work completed multiplied by the area of land allocated to the developer.
2. For contracts for joint construction and division of ownership percentages, the percentage of construction work completed multiplied by the percentage of ownership allocated to the developer, further multiplied by the area of land involved in the project.
3. For contracts for joint construction and separate sale of the finished buildings, the percentage of construction work completed multiplied by the ratio of the building's selling price to that of the base land, further multiplied by the area of land involved in the project
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Article 20
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The term "uncompleted construction project" as used in Article 16, subparagraph 7 shall mean a construction project in which costs already paid account for 40% or more of the total cost of the project.
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Article 21
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The term "construction company" as used in Article 17 of these Criteria shall mean a construction firm engaged in construction and civil engineering in accordance with the Ministry of the Interior's Rules Governing the Construction Industry.
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Article 22
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The term "principal business or products" as used in Article 18, paragraph 1, subparagraph 3 of these Criteria shall mean those items which account for 30% or more of total operating revenues in the two most recent fiscal years.
Judgments regarding the term "mutual competition" as used in the same subparagraph shall be made on the basis of an overall assessment of factors such as the type of enterprise, the interchangeability of products, and target customers.
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Article 23
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The stock exchanges or securities markets referred to in Article 26, paragraph 1, subparagraph 2, Article 27, paragraph 1, subparagraph 2, and Article 27-1, paragraph 1, subparagraph 3 refers to the following:
1. The New York Stock Exchange (US)
2. The American Stock Exchange (US)
3. The NASDAQ (US)
4. The London Stock Exchange (UK)
5. Deutsche Bourse AG (Germany)
6. The Euronext Paris Bourse (France)
7. The Italian Stock Exchange (Italy)
8. The Euronext Amsterdam Stock Exchange (the Netherlands)
9. The Toronto Stock Exchange (Canada)
10. The Australian Stock Exchange (Australia)
11. The Tokyo Stock Exchange (Japan)
12. The Osaka Stock Exchange (Japan)
13. The Stock Exchange of Singapore (Singapore)
14. The Kuala Lumpur Stock Exchange (Malaysia)
15. The Stock Exchange of Thailand (Thailand)
16. The Johannesburg Securities Exchange (South Africa)
17. Other stock exchanges as approved by the competent authority.
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