Procedures for the division of a joint stock limited company
(1) The decision on the company's intention of separation
The division of the company is obviously a major business decision of the company and should be decided by the highest authority of the company. The plan for division and dissolution shall be drawn up by the board of directors and made by the shareholders' meeting of a limited liability company or a joint stock limited company, and it shall be valid only if it is approved by more than two thirds of the voting rights held by shareholders present at the meeting.
(2) To formulate the company separation agreement.
No matter whether it is a newly established division or a surviving division, at the beginning of the division, the separation parties must sign a separation agreement. The newly established resignation agreement is usually called resignation plan, and the existing resignation agreement is usually called resignation contract. This is because the newly established division is carried out by the original company, and the surviving division will lead to the contractual relationship between the original company and the derivative company. But in fact, in the case of new division, all new companies will still reach a contract on division, so there is nothing wrong with calling it a division agreement.
(3) Information disclosure of company division
The creditor protection procedure is particularly important for the company separation system, otherwise, the shareholders' income will be based on the plunder of the company's creditors, which obviously goes against the abstract value of legal fairness and justice. The purpose of information disclosure of company division is to protect the interests of minority shareholders and creditors by protecting their right to know about company division. Information disclosure can be divided into ex ante disclosure and ex post disclosure. Pre-disclosure covers a wide range. In addition to formulating a settlement agreement and sending it to the shareholders of the company or notifying or announcing the creditors before the shareholders' meeting, financial statements such as the so-called separation report or the reasons for distributing new shares, the solvency statement, the balance sheet, the income statement and the main property catalogue of the separated company should be compiled and prepared to provide a basis for shareholders to decide whether to recognize the separation of the company and creditors to decide whether to object. After-the-fact publicity means that a company should also make a written report on the process, benchmark date, total assets and liabilities, rights and obligations of the successor company or the newly established company after the company is divided, and put it in the company for shareholders, creditors and other relevant stakeholders to read as information to judge whether to file an invalid lawsuit for company division.
(4) Procedures for protecting the interests of creditors when the company is divided.
The interests of creditors should be placed in the important position of company separation, because irregular company separation will first reduce the amount or change the nature of the liability property that creditors initially rely on, but at the same time, it should also avoid allowing creditors to interfere too much in the process of separation, which will lead to too complicated separation procedures and seriously deviate from the efficiency orientation of company separation system.
(V) System of exercising the voting rights of interested parties When the shareholders' general meeting votes on the resolution of company division, the system of restricting the voting rights of interested parties shall be implemented. The system of restricting the exercise of interested parties' voting rights, also known as the exclusion system of shareholders' voting rights, refers to the system that shareholders and their agents cannot exercise their voting rights on the shares they hold when they have special interests in the resolutions discussed at the shareholders' meeting.
(VI) Shareholders' Objection Valuation Right and Stock Purchase Right The establishment of shareholders' Objection Valuation Right and Stock Purchase Right has two major purposes: First, it helps dissenting shareholders to exchange their shares for reasonable prices and leave the company. After all, the law cannot force dissenting shareholders to stay in a company whose structure and rights have changed; Second, as a tool to check and balance the board of directors or major shareholders, to prevent them from abusing their rights and arbitrarily changing the company structure. As an important tool for safeguarding rights, shareholders should always enjoy the right to disagree with shareholders and the right to buy shares. When the company law of our country constructs the right to purchase shares and the right of dissenting shareholders' appraisal, it should adopt the method of summarizing and enumerating, and completely stipulate the circumstances in which shareholders can exercise relevant rights, including the division of the company. No matter what the specific circumstances of the company's division are, as long as it does not belong to individual circumstances in simple division, dissenting shareholders should be given the right to purchase shares.
The newly established division usually adopts the division of share capital, that is, the company is split into two or more new companies and the original company is dissolved. The division of share capital can be divided into two typical ways. The first belongs to the separation of enterprises and shareholders. All the shareholders of the separated enterprise have obtained all the shares of the separated enterprise in a balanced way according to the original shareholding ratio, the original shares of the separated enterprise have been cancelled according to law, and the separated enterprise has been dissolved according to the provisions of the Company Law. The second category belongs to the separation of enterprises and shareholders. Similarly, if different shareholders of a separated enterprise acquire shares of different separated enterprises, they shall dissolve the separated enterprise according to the Company Law and cancel their shares according to law.