TAIWAN Law and Practice Contributed by: Stephen Wu, Yvonne Hsieh, Wei-Han Wu and Erica Chiu, Lee and Li, Attorneys-at-Law
3.4 Parties Responsible for Filing The following parties shall file a combination notifica - tion: • all the enterprises involved in the transaction where an enterprise is merged into another enterprise, regularly runs operations jointly with another enter - prise or is commissioned by another enterprise to run operations; • the holding or acquiring enterprise where an enter - prise holds or acquires shares or capital contribu - tion of another enterprise; • the transferee or lessee where an enterprise trans - fers or leases its operations or assets to another enterprise; and • the controlling enterprise where an enterprise directly or indirectly controls the business opera - tions or the appointment or discharge of personnel of another enterprise. If an enterprise required to file has not yet been estab - lished, the existing enterprises in the merger shall file the notification. Companies considering a combina - tion should note that the Enforcement Rules indicate that, in a combination-type acquisition of shares or capital contributions of another enterprise, the ulti - mate parent company of the acquirers shall be the notifying party if a control/subordinate relation exists between the acquirers or if the acquirers are under common control of one or more entities. 3.5 Information Included in a Filing The following information is required to be included in the main content of a filing. • The participating parties’ basic information. • Information on the cost of production or other operational costs, selling prices, the quantity and value of production, and sales of the top three major services, and related products/services, of the participating parties for the last three years in Taiwan. • Horizontal competition information regarding the structure of the relevant market of the participating parties in Taiwan. • Market information regarding the upstream (suppli - ers) and downstream (customers) industries for the participating parties in Taiwan.
Failure to Notify . Public information reveals that no penalties have been imposed in the case of foreign- to-foreign transactions. 2.14 Exceptions to Suspensive Effect There are no general exceptions to nor waivers from the suspensive effect. 2.15 Circumstances Where Implementation Before Clearance Is Permitted There is no exception under the TFTA that allows par - ties to close a transaction prior to receiving the TFTC’s clearance. Furthermore, whether the TFTC will accept the parties’ proposal to temporarily carve out trans - actions related to Taiwan is unclear, since no case precedent is available. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification The law does not stipulate a deadline for making a filing. However, since the TFTC requests a definitive agreement or relevant board resolution to be submit - ted with the notification to evidence the parties’ inten - tion of conducting the transaction, the parties may make a filing once their boards approve the proposed transaction or complete the signing of the definitive agreement, which is deemed to be the earliest time at which to do so. 3.2 Type of Agreement Required Prior to Notification A definitive agreement or relevant board resolution must be submitted along with the notification in order to prove the parties’ intention of conducting the trans - action. The TFTC will review whether a filing based on a less formal agreement such as a letter of intent or memorandum of understanding is acceptable in each case. If the parties are unable to provide any written agreement indicating their intention of proceeding with the proposed transaction, the TFTC may reject the filing. 3.3 Filing Fees No filing fee is required.
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