Cross-border merger (Import merger) of two German limited liability on an Austrian GmbH without a resolution of the shareholders first Context in commercial register of the provincial court Innsbruck
HR B * GmbH, based in K * and a fully paid share capital of € 35,000 is - registered.
In Register the local court in Munich are the
T * GmbH and
registered with the B * GmbH are based in U *. Their respective share capital of € 25,000 has the above-mentioned Austrian
HR B * GmbH as respective sole shareholder.
The managers of all three participating companies created on 06/02/2010 one (by a German notary notarized) of merger in which the cross-border merger of the two (German) companies, namely the
T * GmbH and
B * GmbH , as the transferring company to the (Austrian) sole shareholder, ie the
HR is B * GmbH agreed.
second Summary of the merger plan This Merger Plan stipulates in its § 1 legal form, name and whereabouts of all the merging companies, regulates the transfer clause in § 2 that the two companies transferred their assets as a whole ... transferred by way of universal succession in accordance with § § 122a, para 2, 2 1 dUmwG and 3 para 2 of the EU in 1996 in conjunction with VerschG öGmbHG. § 3 deals with the representation of shareholders and shares and the reasons for the failure of one unit to guarantee (up-stream-merger in accordance with § 224 para 1 Z 1 AktG) and therefore also unnecessary requirements on the exchange ratio of shares.
In § 4, it deals with the likely impact of the merger deal on the employment of workers, is being held with that in the transferring T * GmbH, a worker in the transferring B * GmbH, two workers and at the receiving HR B * GmbH no workers are employed. More specifically, it identifies the legal implications and opportunities of employees, received as a result of the merger. It is noted also that is set up at the participating companies no works and no Board exist.
According to § 5 of the merger plan will be added to the merger, the closing balance sheets of the companies being to 02.28.2010 to reason and noted that both the date of the completion of this merger plan and the merger date, the acquired companies each have a positive market value. From § § 6 and 7 shows that companies any privilege or any member of management or supervisory bodies and any auditor of the credits of the merging companies special advantages.
The social contract of the acquiring company will be included as part of the merger (§ 8), in § 9 stated that the regulations do not have the participation of employees by virtue of agreement or by operation of law are applicable in this case because there are no participation rights of workers (§ 5 dMgVG and (probably meant) § 258 Abs 1 Z 1-3 öArbVG).
§ 10 provides that the assets will continue the acquired companies at book value of the acquiring company regarding the cash compensation is set forth in § 12 that provide the information was not necessary because all the shares in the companies being acquired in the hands of the acquiring company . are
third Submission of merger the commercial register and notice published in the Wiener Zeitung This merger was filed on 06.02.2010 in the commercial register of provincial court Innsbruck. In the Official Journal of the Wiener Zeitung, the reference to the submission date of 06/19/2010 was published, this publication has - in part - the following contents:
Under § 8 EU VerschG is made known to the merger on the proposed merger of ... as the transferring companies to the parent company ... ... the commercial register has been filed.
are the companies being acquired ..., registered in the commercial register of the local court in Munich under HRB ***, where the documents of the acquiring companies (probably meant: the companies being acquired) were submitted. All the shares of the merging companies are in the hands of the acquiring company.
The acquiring company is ..., registered in the Commercial Register of the Provincial Court under FN *** Innsbruck, where the documents of the acquiring company were filed.
the creditors of the merging companies must be paid in accordance with § 122J of the German Transformation Act security, if they can not demand instant gratification and, within two months from the date of the merger by the Register the local court in Munich has been made public, their claim to reason and the amount written in the log T * B * GmbH and GmbH and credibly, that by merging the fulfillment of their demand is at risk. This right is given to ensure only those creditors who make claims contrary, which are incurred before or up to 15 days after notice of the merger plan.
the creditors of the acquiring company is under § 226 AktG to provide security to the extent they can not demand satisfaction and within six months after the notice of the merger in the commercial register of provincial court Innsbruck their claim to land and Height apply in writing and credibly, that the merger, the performance of their assets at risk.
Full information on those arrangements can Mr. M ** B **, * Director of HR GmbH, based in K *, S *- Straße 14, be obtained free of charge.
to design and be contained in that publication, I've done in my post of 11/09/2009 notes. Accordingly, pursuant to § 8 applies also to the EU VerschG GmbH - as opposed to national merger law - that the executive directors of the merger plan at least one month before the General Assembly through the merger resolution before the competent court or tribunal for the GmbH and to publish a notice of this filing notice in the leaves have. The minimum content of this publication must include:
(i) the type, name and domicile, (ii) registers and the register number, (iii) indication of the arrangements for the exercise of creditor rights (§ 13), (iv) indication of the arrangements for the exercise of the rights of minority shareholders, (v) the address, may be obtained free of charge at the full particulars of the arrangements (
Wenger in
Frotz / Kaufmann , Practice Commentary, § 8 EU VerschG para 7).
The submission of the merger plan and the publication are also mandatory in the cross-border merger pursuant to § 8 para 4 EU VerschG a waiver option as to § 232 para 2 AktG does not exist. The reason given is that the rules also serve to protect and inform the creditor (
Wenger supra, § 8 EU VerschG para 10).
In this particular case, therefore, the publication in all respects with the minimum content requirements.
4th Joint merger report of the management The (not in accordance with § 6 para 1 EU VerschG dispensable) Merger Report of the managing directors of all three participating companies were drawn up on 8./9.6.2010.
employ the joint merger report, the manager essentially the following points:
- description of the participating companies and shareholder structure, description of the respective business objects;
- economic background to the merger; aim was to simplify the corporate structure as well as cost avoidance and reduction of administrative burdens , the acquiring company takes over so far by both the companies being perceived business operations;
- Legal It is based on the common draft, the shareholders without consideration of the merger plan referred to in § 7 of the EU VerschG conjunction 220b AktG; documentation of § 221a para 1 AktG be disclosed pursuant to § 8 EU VerschG
- because all the shares of the merging companies in the hands of the acquiring company are situated on the consent of the shareholders waived the acquired companies (§ 122g para 2 dUmwG or § 231 AktG);
- explanation of the different aspects of the merger plan, with substantially the rules given the terms of merger and briefly commented;
description the impact on the participating companies with a detailed representation of the relevant German law, particularly as only the acquired companies have employed workers; - description of the legal framework regarding the participation of workers of the conclusion that the provisions will not have the participation of employees on the application (No case of (meaning well) § 258 Abs 1 Z 1-3 ArbVG);
- description of the impact on creditors, description of the creditor protection provisions of § § 122J dUmwG regarding respect of creditors of the companies being and that of § 226 Austrian Stock Company Act creditors of the acquiring company;
- finding that the merger has no impact on shareholder level.
5th The balance sheets of the companies involved
The closing balance of the transferring GmbH for T * from 02.28.2010 has negative equity of € 93,462.87, the final (interim) balance sheet of the transferring B * GmbH on 28.02.2010 has the registered capital of € 25.000, - from a net loss of € 18,194.14 and a loss carryforward of € 518.14, the capital of that company merger is therefore positive.
The last book to the company submitted final stock of the acquiring Company 30.6.2009 (30.6.2010 that was not yet laid open) shows a result of a net loss of € 21,707.12 a positive equity of € 13,292.88.
My comments this:
based on such balance sheet values of the participating companies is evidence in the direction of a risk to the creditors of the acquiring company. In any case, the only slightly positive HR * GmbH will also only slightly positive B * GmbH and clear - transferred indebted * T GmbH - the accounts.
The merger will, while maintaining a position that the two acquired companies each have a positive market value, in this regard so far no evidence has been presented to the Company Registry. The applicant will be given the opportunity to refute these concerns by presenting credible and transparent assessment records. It will be possible to investigate in the current financial situation of the acquiring company (the final closing balance was indeed not yet disclosed), as also to examine in an up-stream-merger in the context of the physical examination requirement is whether the merged company is not insolvent is ( § 17 FBG).
6th The certificate according to § 15 para 2 of the German EU VerschG Court Register
With the registration of the merger, two releases of the district court of Munich on the transferred at the two companies made entries in the respective company registration submitted, each with the following contents:
The company is due to the merger plan dated 06/02/2010 with the HR B * GmbH, based in K * merged. The conditions of the merger under German law are available. The merger will become effective only after the conditions of the law governing the acquiring company are met.
My comments this:
According to § 15 para 2 last clause EU VerschG is the company's import directory entry of a merger from other Member States a certificate of regularity of the pre-merger acts and formalities be enclosed, which is not older than six months. As the comments of my contribution 11.7.2008 shown by Alexander Kaufmann, § 122k para 2 dUmwG says that the message about the registration of the merger has been registered as a merger (legality) holds certificate. The entry in the German commercial register shall be marked with the note that cross-border mergers under the conditions of the law of the state where the acquiring company is subject to effective is.
By presenting these two releases thus register as required under § 15 para 2 EU VerschG legality certificate is provided.
7th An application for a registration with the Austrian Commercial Register Court
Referring to the previously submitted draft terms of 06/02/2010 as well as submitting the joint merger report, which claimed two final balance sheets of acquired companies, the publication in the Official Gazette and two register messages of the Local Court Munich the CEO of that company with the Company Registry on 12.20.2010 is arrived Registration the registration of the described cross-border mergers.
The notification will include raised:
- The obligation for the collection and presentation of the acquiring Austrian company no longer relevant merger decision, as the CEO of the acquiring company to act under § 231 para 1 has waived 1 AktG.
- The obligation for the collection and presentation of the acquired companies such merger decisions ceases to apply under § 122g dUmwG para 2, as are all of the shares of the companies being in the hands of the acquiring company.
- The obligation to prepare an audit report has been dropped because the acquired companies are merged into its sole shareholder.
My comments this:
The decision on the merger at the shareholders' meeting may be omitted at a in a cross-border merger involved the acquiring Austrian company pursuant to § 231 AktG, if it owns at least 90% of the nominal capital of the company, as far as not a minority in all at least 5% of the nominal capital of the acquiring company under § 231 para 3 AktG for the purpose of convening the text of the merger decision demand.
When involved in cross-border merger foreign company may not take a decision if the national foreign merger law provides for the ( Wenger in Frotz / Kaufmann , Practice Commentary, § 9 EU VerschG para 7, 7a).
These rules have in the particular case actually the consequence that will be taken at this cross-border merger for the 100% sole shareholder absolutely no merger decision has to, because this is when the acquiring company to the Austrian sole shareholder and the German merger law in § 122g Abs 2 dUmwG for the concrete Of circumstances the failure of a resolution in the acquired company allows.
It can not, even in these cases under § 8 EU VerschG to dispense with the filing of the merger plan and the publication and even the disclosures to comply according to § 221a para 1 and 2 AktG, would lack taking place general meetings but in § 8 EU VerschG controlled one-month period does not need to consider ( Wenger supra, § 8 EU VerschG para 14).
made application for a merger after the first nine months of the date of final balance sheets of acquired companies (ended 02/28/2010, Company registration application 20.12.2010).
Since acquiring Austrian company has set up on the occasion of the merger not closing balance sheet, the company's book provides only the closing balances of the transferring foreign companies. In this case, the Austrian company register any court under the law of the foreign company not to consider to be observed for the closing balance sheets. The passage of the 9-month period is therefore meaningless when registering an import merger and not to take up ( merchant in Frotz / Kaufmann , Practice Commentary, § 15 EU VerschG para 10).
The notification of the merger in accordance with § 15 para 2 EU VerschG be enclosed in addition to the legality certificate specified in § § 225 para 1 and 233 AktG designated documents:
- the merger in one of the Austrian Notariatsaktspflicht the form was submitted (line 1)
- merger decisions were taken not to scan an original obligation is not so (Z 2)
- the joint merger report was presented (Z 4)
- the obligation to prepare an audit report by a merger auditor does not exist, because a merger is present on the single shareholder (§ 232 para 1 in conjunction with § 3 para 2 EU VerschG) ( Z 5)
- the final balance sheets of the merging Companies are available (Z 6)
- the proof of publication (Official Gazette) was submitted (item 7)
- the legality certificates according to § 15 para 2 EU VerschG are also available.
With the exception of the lack of evidence of the positive market value therefore exist, all registration conditions.
