问答题
Four private Enterprises A, B, C and D incorporated as a limited liability company, Yuanda Co Ltd, with a registered capital of RMB 40 million yuan. After three years’ successful business operations from 2005–2008, Yuanda Co Ltd made profits and the net assets of the company increased to RMB 60 million yuan.
In January 2009, at the annual shareholders’ meeting of the company, Yuanda Co Ltd adopted a resolution for the following three items:
Required:
Explain whether the above resolutions (a), (b) and (c) were in conformity with the relevant provisions of the Company Law and Securities Law.
NOTE: The mark allocation is shown against each resolution.
问答题
(a) On the issue of the replacement of supervisors – Mr Zhang, as appointed by Enterprise B, should replace Mr Wang (who had been appointed by Enterprise D) and Mr Lee, as the vice manager of Yuanda Co Ltd, should replace Mr Ding who was an employee of the company. (4 marks)
【正确答案】In accordance with Article 52 of the Company Law, the supervisors as the representatives of employees shall be elected and appointed by the staff and workers of the company through the staff and workers congress, workers’ assembly or other forms.Directors and senior executives of the company shall not concurrently serve as supervisors.
In this case, the replacement of Mr Wang by Mr Zhang was in conformity with the Company Law, as Mr Wang used to be a representative of Enterprise D.
However, the replacement of Mr Ding by Mr Lee was not in conformity with the Company Law, since Mr Ding was a representative of employees and should be replaced by employees of the company. The shareholders’ meeting had no power to pass a resolution in this regard.
【答案解析】
问答题
(b) On the issue of issuance of corporate bonds – The company should issue corporate bonds of RMB 8 million yuan to expand its business. (3 marks)
【正确答案】In accordance with Article 16 of the Securities Law, a company shall meet some conditions to issue corporate bonds: the net assets of a limited liability company shall not be lower than RMB 60,000,000 yuan; the average distributable profits of the company for the past three years shall be sufficient to pay the interest on the corporate bonds for one year, etc.
Based on the facts given, the resolution on the issuance of corporate bonds met the conditions as prescribed by the law. Since Yuanda Co’s net assets reached the minimum requirement of RMB 60 million yuan and made profits for the past three consecutive years.
【答案解析】
问答题
(c) On the issue of the use of the statutory common reserve fund – With a vote by the shareholders representing two thirds of the equity, the shareholders’ meeting decided to convert RMB 2·50 million yuan out of RMB 10 million yuan of the statutory common reserve fund to the registered capital. (3 marks)
【正确答案】In accordance with Article 169 of the Company Law, a company’s common reserve fund shall be used to make up the company’s losses, to expand the operation or to increase the capital of the company by means of conversion. When the statutory common reserve fund of a company is converted into its capital, the remaining amount of the statutory common reserve fund shall not be less than 25% of the registered capital.
The resolution in relation to the transfer of the statutory common reserve fund to the registered capital was in conformity with the relevant provisions of the law, as the requirements for the net assets of the company and the remaining amount of the statutory common reserve fund are satisfied.