在当前的投融资环境下，国资背景的投资方常常承担着地方政府的返投任务，对被投企业的注册地点存在特定诉求，因此，若被投企业未注册在此类投资方期待的特定地区，则投资方可能会要求被投企业迁址以实现当地的招商引资。市场上已出现部分项目的投资方以此作为投资交割的前提条件。
优质企业无疑都是各地的“心头肉”，能为当地带来税收效益、工作岗位等。因此，企业的迁出之路可能面临迁出地政府“不放手”、迁出和迁入程序衔接不顺畅等一系列疑难问题，可能拉长迁址进度，甚至实质上无法最终完成迁址。
为协助企业顺利实现“迁址”目的，我们在相关交易中对企业迁址的命题进行重新思考和思路转换。事实上，除了直接变更注册地址，企业也可考虑通过股权重组进行股权结构的调整，以满足投资方对于变更融资主体及后续上市主体所在地的需求。但此等“重组式迁址”也并非一路坦途，如有不慎，同样可能面临法律和税务的障碍和风险，因此需要提前对这类重组交易进行审慎考量和规划。
一、直接迁址的障碍和难点
The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2023 (Collective Redundancies AmendmentAct) came into operation on 1 July 2024.
The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2023 (Act) came into effect on 1 July 2024.
The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (Act) has been signed into law but awaits a commencement order to bring it into operation.
In summary, the Act amends the Companies Act 2014 (Companies Act) by modifying the attribution test for related companies to contribute to the debts of the company being wound up, broadening the operative time for unfair preferences, and varying the test for reckless trading.
1. Related company contribution
Following on from the UK Supreme Court decision in Sequana (discussed here), the recent UK High Court (UKHC) decision in Hunt v Singh [2023] EWHC 1784 (Ch), further considered the duty of directors to take into account the interests of creditors in certain circumstances.
The High Court (Court) recently dismissed a petition seeking the winding up of a biofuel company (Company).
The ex tempore judgment is of note because it considers the standing of the Petitioner to bring the application and the consequences of a relevant witness not being cross-examined by the Petitioner on his affidavit evidence regarding the solvency of the Company.
Background
A previously unsettled aspect regarding the High Court’s (Court) jurisdiction to appoint an examiner to a company which is not formed or registered under the Companies Act 2014 (2014 Act), has been considered in the recent case of In the matter of MAC Interiors Ltd [2023] IEHC 395.
Earlier this year, a group of bondholders advised by William Fry and owed over US$175m by GTLK Europe DAC (GTLK Europe) and GTLK Europe Capital DAC (GTLK Capital) (collectively the Companies) petitioned for the winding up of the Companies on a number of grounds, including that they had failed to discharge scheduled interest payments and the accelerated debt constituted by the bonds following the interest payment defaults.
The High Court (Court) had to determine whether proceeds from two investments in the estate in the bankruptcy of Bernard McNamara (McNamara) were payable to NALM under its security package, or whether they should be retained in the estate in the bankruptcy of McNamara for the benefit of creditors generally (substantive question).
The High Court (Court) has found that it was not appropriate to make a winding up order in respect of a company under section 760(2) of the Companies Act 2014 (Act), where no party was nominated or consented to act as liquidator.