Автор работы: Пользователь скрыл имя, 20 Апреля 2013 в 23:27, реферат
Basically any person can participate to the creation of companies provided that was not condemned for specific criminal offences stipulated in the law.
Partnerships, limited partnerships and partnerships limited by shares forms a separate corporate entity from their shareholders but all of the shareholders in case of a partnership or only some of them in case of limited partnerships and partnerships limited by shares, are liable for the company’s debts.
In case of the joint stock companies and the limited liability companies, the shareholders’ liability is limited to the amount they had invested, i.e. the subscribed share capital.
According to the provisions of the Companies Law, mergers and de-mergers are defined as follows:
• Merger is the operation where one or more companies are dissolute without going int liquidation and transfer all their assets and liabilities to another company, in exchange of the allocation of shares in already existing companies or in newly established companies and of cash payment (if the case), not exceeding 10 % of the nominal value of the shares so allocated.
• De-merger is the operation where a company, after being dissolute without going into liquidation, transfers to one or more existing companies or newly created ones all its assets and liabilities in exchange of the allocation of shares in already existing companies or in newly established ones and of cash payment (if the case), not exceeding 10 % of the nominal value of the shares allocated to the shareholders of the company being divided. However, the de-merger procedure may be effectuated, by transferring only a part of the company’s patrimony to one or more existing companies or newly established companies, without ceasing its existence.
A merger or a de-merger may also take place between different forms of companies and even though the companies being dissolute are in liquidation, provided that there was no distribution of assets between the associates.
There are also several regulations regarding the registration of a merger and/or de-merger with the relevant authorities (i.e. Trade Registry) and also some procedures that has to be followed, namely:
1. prior approval of the General Meeting of Shareholders to decide in relation to the merger or de-merger procedure;
2. draft of a merger or de-merger plan in this respect;
3. registration of the respective plan within the Trade Registry in order to be approved by the delegated judge and observing the publicity procedures towards third parties;
4. finalization of the merger or de-merger procedureby registering within the Trade Registry the changes operated as a result of the merger or de-merger procedure.
The date when the merger or de-merger shall be effective may be established as follows:
1. in case one or more companies are set up through the merger/de-merger process, the merger/ de-merger is effective on the date of registration, in the Trade Registry, of the new company or of the last of the these companies
2. in cases other than the ones mentioned above, the merger/de-merger is effective on the date of the registration of the decision of the last general meeting having approved the operation, except
where the agreement specifies that the operation shall take effect on another date.
Companies involved in a merger procedure may be subject to certain restrictions, especially from a competition law perspective. As such, each time such an operation takes place, it should be analyzed whether, by meeting certain material thresholds, the respective merger falls under the provisions of Competition
Law 21/1996, or even of Council Regulation (EC) no. 139/2004 of January 20, 2004 on the control of concentration between undertakings.
Joint ventures
A method under which foreign investors, being either individuals or legal entities, may carry our business activities in Romania is to forming joint ventures agreements. The general legal framework for this kind of commercial association is provided by the Romanian Commercial Code.
Under the said regulation, the execution of a joint ventures agreement does not create a separate legal entity. Moreover, the structure in itself does not have legal identity, and therefore third parties shall oblige to and may have claims only to those persons to whom they have contracted from the joint venture. From this perspective, note that the parties participating in the joint venture can be classified into silent partners and upfront partners. Only the latter engage in contractual relations to third parties and engage the liability.
With respect to the formalities which have to be observed when executing a joint venture agreement, note that the rules applicable to companies do not apply in this case and the only requirement is that the agreement has to be concluded in writing.
Other forms of partnerships
In this respect, please note that Romanian Law does not regulate any other forms of partnerships. However, such partnerships may be structured following the principles applicable to contracts in general and not by following special regulations as it is the case with joint venture agreements. Such partnerships could be those of consortiums which from a tax perspective follow the principles set forth for joint ventures agreement, namely that the partners shall bear the tax and fiscal obligations, and the partnership in itself.