Legal procedures to be performed in the division of listed companies
(1) The board of directors shall formulate the division plan of the listed company.
The division plan of listed companies formulated by the board of directors is the basis for discussion and deliberation at the shareholders' meeting. The drafting of the division plan should be based on the full collection and analysis of the company's division information, in line with the business goal of maximizing the interests of shareholders and the company, and the content should be as detailed and feasible as possible. The company's division plan shall explain the draft terms of the company's division contract, and explain the legal and economic reasons for formulating these terms, especially the share exchange ratio and the standard for distributing shares. The legal problem that needs attention in this link is that the board of directors plays the role of "goalkeeper" in this respect. If the plan for the separation of listed companies adopted by the board of directors is fraudulent or illegal, directors who are unwilling to raise objections may bear civil liability for compensation to the company or shareholders.
(2) The shareholders' meeting shall make a resolution in accordance with the provisions of the company's articles of association.
The division of the company will affect the fundamental interests of all shareholders. Therefore, Article 182 of the Company Law stipulates that the division of the company shall be decided by the shareholders' meeting. According to the provisions of Article 106 of the Company Law, the resolution of the shareholders' meeting on the division of the company must be passed by more than 2/3 of the voting rights held by the shareholders present at the meeting, not by more than 1/3 of the voting rights held by the shareholders present at the meeting. Attention should be paid to the following issues: the company should issue a notice of convening a general meeting of shareholders to all shareholders (including voting shareholders and non-voting shareholders), and the notice should specify the topics of reviewing the company's division plan and passing the company's division resolution. From the point of view of perfecting legislation, China should refer to Article 8 of EU Company Law Directive No.6, and the judicial organ or administrative organ shall designate or approve one or more experts to examine the division plan of listed companies drawn up by the board of directors and submit a written report to shareholders. Expert representatives are involved in the interests of individual companies, but independent of them.
(three) the parties signed a company division contract
According to Article 170 of the Guidelines for the Articles of Association of Listed Companies and Article 22 of the Provisions on Merger and Separation of Foreign-invested Enterprises issued by the former Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce, when a company is divided, all parties shall sign a separation contract. The company division contract was signed after the company's shareholders' meeting made a resolution on the company division. Therefore, the content of the contract is essentially the embodiment of the resolution of the shareholders' meeting. The division contract shall clearly stipulate the division of the assets of the original company, the inheritance and acceptance of the creditor's rights and debts of the original company by each company after the division, the division of the business scope of each company after the division and other related issues.
(4) Handling relevant examination and approval procedures according to law.
According to Article 188 of the Company Law, the division of a joint stock limited company (including listed companies and unlisted companies) must be approved by the department authorized by the State Council or the provincial people's government. Therefore, from the current legal provisions, there is a certain degree of government intervention in the separation of listed companies, which is not a decision made by listed companies purely based on the principle of autonomy of will.
(5) Handling various affairs such as creditor's rights and debts. When the company is divided, it shall prepare a balance sheet and a list of assets.
Everything has two sides, of course, so does the division of companies. From different angles, some shareholders think that separation is more conducive to the stable development of the company, while others disapprove of the separation of listed companies. They believe that if the company is really separated, it will definitely affect the rights and interests of some shareholders. Therefore, when a listed company is divided, it should not only follow the procedures prescribed by law, but also pay attention to protecting the rights and interests of shareholders of the listed company.