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13. Overview of procedure and timeline

Schindler/Stingl1. AuflSeptember 2009

Common draft terms

The management board of each of the merging companies is required to draw up the common draft terms of a cross-border merger in the form of a notarial deed.

Publication

At least one month before the date of the shareholders' meeting the common draft terms must be:

  • filed with the Commercial Court; and
  • published by the company in the national gazette.

Report of the management

The management board of the merging companies must prepare a report on the proposed cross-border merger explaining and justifying the legal and economic aspects of the cross-border merger and its implications for shareholders, creditors and employees.

Independent expert's report

An independent expert's report intended for shareholders and made available no less than one month before the date of the shareholders' meeting must be drawn up for each merging company.

 

The shareholders of each company can waive (in writing or in the shareholders' meeting) such independent expert's report.

Report of the supervisory board

The supervisory board must evaluate the legal correctness and the economic efficiency of the presented terms and reports as well as the intended merger. If the company has a mandatory supervisory board, the supervisory board cannot waive its obligation to scrutinize the merger.

Information duties

 

vis-à-vis shareholders:

The common draft terms, annual financial statements and financial reports for the last three years of all companies involved, final balance sheet of the transferring company as well as interim financial statements (if any), reports of the management, report(s) of the independent expert(s) and the report of the supervisory board (if any) must be sent to the shareholders one month prior to the shareholders' meeting.

vis-à-vis employees:

At least one month prior to the date of the shareholders' meeting, the report of the management must be made available to the employees' representatives, if any, or to the employees.

 

The employees (or the works council, if any) must be informed about the merger in writing regarding the (proposed) date of transfer, the reason for the transfer, the legal, economic and social implications for the employees and any measures envisaged in relation to the employees.

vis-à-vis creditors:

The common draft terms must include the arrangements made for the exercise of rights by creditors of the merging companies.

 

In addition, creditors of the transferring company must be personally informed in case of a merger into a foreign entity if the sum of the registered capital and the capital reserves of the absorbing company is lower than the sum of the registered capital and the capital reserves of the transferring company.

Approval by the shareholders' meeting

The formalities for convening the shareholders' meeting must be carried out at least seven days prior to the shareholders' meeting.

Pre-merger certificate (outbound merger)

The management of the transferring company must file an application for the issuance of the pre-merger certificate to the competent authority.

Registration of the merger (inbound merger)

The management of the companies involved must file an application for registration with the Commercial Court competent for the absorbing company. The merger is legally effective upon registration of the merger in the Commercial Register of the absorbing company.

Registration of deletion of transferring entity (outbound merger)

After registration of the merger in the foreign Commercial Register, the management of the absorbing company must file an application for the deletion of the transferring company. The deletion of the transferring company has a declaratory effect only.

filed with the Commercial Court; and

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