A feature not found in the legislation governing other types of capital companies (limited liability companies and public limited companies) is the possibility for a designated shareholder (referred to as the acquiring shareholder) to take over the assets of a public limited company, subject to the obligation to satisfy the company’s creditors and remaining shareholders. The specific nature of start-up companies*,* for which the introduction of a new type of company – the simple joint-stock company – was intended, required the creation of rules to prevent the need for a lengthy, burdensome and costly liquidation process.
The procedure in question follows a specific sequence of steps set out in the Commercial Companies Code.
The initial step is for the general meeting of the P.S.A. to adopt a resolution on the acquisition of the company’s entire assets by the acquiring shareholder, which requires a three-quarters majority of votes cast in the presence of shareholders representing at least 50% of the total number of shares. Subsequently, the public limited company should apply to the registry court for permission for the designated shareholder to acquire its assets, attaching to this application a list of the company’s creditors indicating the type and amount of their claims, as well as documents detailing the company’s assets to be acquired and the financial position of the acquiring shareholder. Immediately upon receipt of this application, the registry court should publish a notice in the Court and Economic Gazette regarding the adoption of the above resolution and call upon the company’s creditors to lodge objections within a period of not less than 30 days from the date of publication. Any objections should be lodged by the creditors with the registry court, together with a copy for the company. If no objection is lodged within the time limit set by the court in the announcement, the registry court may issue a ruling on the authorisation to take over the company’s assets in a closed session. Otherwise, this may only take place after a public hearing has been held.
It should be noted that, regardless of whether creditors’ objections have been lodged, the condition for the registration court to grant permission for the acquiring shareholder to take over the assets of P.S.A. is that the company must demonstrate that this will not result in prejudice to the creditors or the company’s other shareholders. Only once this possibility has been ruled out during the review conducted by the registry court may authorisation be granted for the acquisition of the company’s assets, possibly subject to the provision of appropriate security.
Once the registration court’s authorisation has become final, the management board or board of directors of the public limited company may apply for the company to be struck off the National Court Register. On the date the company is struck off the register, the acquiring shareholder automatically assumes all the rights and obligations of the struck-off public limited company.
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