Merger of Austrian corporations
A simple overview is provided below of the merger procedure in accordance with the Aktiengesetz (Austrian Stock Corporation Act) and the GmbH-Gesetz (Limited Liability Companies Act). This overview is not exhaustive. Rules are in place, inter alia, for contesting and reviewing the exchange ratio, capital increases, protection offered to creditors, liability and simplified merger, which are not dealt with here.
In the case of a merger by way of new formation or a merger of a public limited company (AG) with a limited liability company (GmbH) or a merger of a limited liability company (GmbH) with a limited liability company (GmbH), the majority of the provisions of the Aktiengesetz (Austrian Stock Corporation Act) shall apply mutatis mutandis. According to the GmbH-Gesetz (Limited Liability Companies Act), some special provisions shall apply, such as specific approval requirements for shareholders, which are cited here purely by way of example.
Merger Agreement and Closing Balance Sheet
The Management Boards (public limited company, AG) and Managing Directors (limited liability companies, GmbH) of the companies involved must
- conclude a Merger Agreement or draw up a written draft with specific minimum contents (e.g. Agreement regarding the transfer of assets and liabilities by way of universal succession, exchange ratio of the shares, effective merger date etc.) and
- draw up a closing balance sheet – and specifically on an effective date no more than nine months prior to the date on which the merger is registered.
The Merger Agreement also requires notarial certification (notarial deed).
The Managing Boards or Managing Directors of each of the companies involved must draw up a detailed written report, in which, among other things, the following subjects are explained and substantiated from a legal and financial point of view:
- likely consequences of the merger,
- Merger Agreement,
- exchange ratio of the shares,
- measures to ensure protection offered to creditors.
Audit by the merger auditor
The Merger Agreement and the draft thereof must be audited by a merger auditor appointed by the Supervisory Board for each of the companies involved in the merger. An auditor in common for all the companies involved shall be permitted where this auditor has been appointed by the court.
Audit by the Supervisory Board
The Supervisory Boards of the companies involved in the merger shall audit the merger on the basis of the merger report and the audit report and shall draw up a written report on the basis of this audit. Exceptions as a result of the articles of association shall be permitted.
Where a limited liability company (GmbH) is involved, the merger report and the audit by the Supervisory Board shall not be required where all shareholders waive this requirement. Should a shareholder require this, the Merger Agreement and its draft must be audited.
Filing the agreement in the commercial register
The Managing Boards of the companies involved must file the Merger Agreement with the competent courts (headquarters), at least one month prior to the date of the General Meeting held to resolve the agreement and publish a reference to the filing of the merger. Alternatively, the Merger Agreement and reference to the filing can be published electronically in the Edicts Archive. Filing and publication are not required in the case of limited liability companies (GmbH).
Provision of documents
Documents (e.g. Merger Agreement, Audit Reports and Merger Reports, Annual Financial Statement and Interim Financial Statement) must be submitted at least one month prior to the General Meeting and must be displayed at the General Meeting. These are associated with verbal explanatory obligations. Where a limited liability company (GmbH) is involved, the necessary documents must be sent to the shareholders – where the shareholders do not waive such a requirement. Following convocation of the meeting, the Managing Directors must provide each shareholder with information concerning all the essential matters for the merger upon request at all times.
Decision-making process in the Shareholders’ Meeting
The decision regarding the merger requires a three-quarters majority. Further requirements, which differ from these, can be laid down in the company agreement or in the articles of association. At the Shareholders’ Meeting, the Managing Board and/or the Managing Director must comply with explanatory and disclosure obligations.
Registering for a merger
The Managing Boards and/or Managing Directors of each company must register to have the merger entered with the relevant court (the company’s headquarters is decisive here), enclose documents and issue declarations.
Registering the merger in the commercial register
The court in whose jurisdiction the acquiring company has its registered office must simultaneously register the merger with all the companies involved.
The significant legal consequences of the registration are, inter alia, transfer of assets and liabilities including debts, to the acquiring company and the fact that the transferring company will cease to exist.
responsible for content: Federal Ministry of Justice