问答题
Kingmart Joint Stock Company (Kingmart Company) was a listed joint stock company listing in Shanghai Securities Exchange, with total assets of RMB 500 million yuan; while Dahua Limited Liability Company’s (Dahua Company) registered capital was RMB 160 million yuan. At the end of 2009 the board of directors of Kingmart Company adopted a special board of directors’ resolution to merge with Dahua Company in a form of merger by absorption. After the completion of the merger plan Dahua Company would be dissolved.
For the purpose of carrying forward the merger plan, Kingmart Company and Dahua Company should take some procedural steps before the merger plan could be implemented and settle the credit and/or debt of these two companies with other parties.
Required:
Answer the following questions in accordance with the relevant provisions of the Company Law, and give reasons for your answer:
问答题
(a) state the relevant voting requirement by the general shareholders’ meeting; (3 marks)
【正确答案】In accordance with Article 122 of the Company Law, where the major assets purchased or sold by a listed company exceed 30% of the total amount of its assets within one year, it shall be resolved at the general shareholders’ meeting and adopted by two-thirds of the voting rights held by the shareholders attending the meeting. In the present case, the amount of the transaction exceeded 30% of the total amount of Kingmart’s assets. Therefore, it should be subject to such a resolution of the general shareholders’ meeting.
【答案解析】
问答题
(b) state the relevant rules with respect to public notice; (3 marks)
【正确答案】In accordance with Article 174 of the Company Law, when companies merge, the company shall inform its creditors of the intended merger plan within 10 days following the date on which the merger resolution is adopted by its general shareholders’ meeting, and make announcement in newspaper within 30 days. Hence, Kingmart should inform its creditors and make an announcement pursuant to the relevant provision of law.
【答案解析】
问答题
(c) state how to deal with Dahua Company’s debts of RMB 500,000 yuan owed to a local electricity plant. (4 marks)
【正确答案】In accordance with Articles 174 and 175 of the Company Law, where companies merge, their creditors are entitled to claim full repayment of their debts or provision of a corresponding guarantee from the company within 30 days from the date of receipt of the notice or, within 45 days from the date of the first public announcement for those who have not received the notice. Meanwhile if companies merge, the claims and debts of the parties to the merger shall be succeeded to the absorbing company or the newly established company when companies are merged. Pursuant to the above provisions the electricity plant might request Dahua to settle the debt or provide a guarantee; it might also request Kingmart to bear the debt since Dahua Company would dissolve after the completion of the merger.