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Company Law (en cours)

At the end of the negotiations, a draft merger agreement must be prepared by the board of directors, the management board, or the managers of each of the companies participating in the merger operation, in accordance with the combined provisions of Articles L. 236-6 and R. 236-1 of the Commercial Code. The draft details all the steps and conditions of the proposed operation.
It must indicate: the  …

Characteristics of the merger project.

At the end of the negotiations, a draft merger agreement must be prepared by the board of directors, the management board, or the managers of each of the companies participating in the merger operation, in accordance with the combined provisions of Articles L. 236-6 and R. 236-1 of the Commercial Code. The draft details all the steps and conditions of the proposed operation.

It must indicate: the form, name, and registered office of all participating companies; the reasons, purposes, and conditions of the operation; the designation and evaluation of the assets and liabilities whose transfer to the absorbing or new companies is planned; the terms of the delivery of shares and the date on which the operations of the absorbed company are considered, from an accounting perspective, to be carried out by the beneficiary companies of the contributions; the dates on which the accounts of the companies involved, used to establish the conditions of the operation, were closed; the exchange ratio of the shares and, if applicable, the amount of any cash adjustment; the rights granted to partners benefiting from special rights and to holders of securities other than shares, as well as, if applicable, any special benefits and the expected amount of the merger premium. The merger premium, mentioned in the liabilities of the balance sheet of the absorbing company, refers to the difference between the actual value of the securities of the absorbing company and their nominal value. It is recorded when there is a discrepancy between the value of the contributed assets and that of the resulting capital increase carried out by the absorbing company.

In order to control the regularity of the project, the appointment of a merger auditor  is required. However, a waiver of recourse to their expertise may occur following a unanimous decision by the partners, as well as in the case of a merger between a parent company and its wholly-owned subsidiary, in accordance with Articles L. 236-10 and L. 236-11 of the Commercial Code.

In the event of appointment, the merger auditor must carry out his mission with the utmost diligence, failing which he may be held liable .

Once established, the draft merger is subject to both internal and external publicity measures. Indeed, Article R. 236-3 provides that the document must be made available to the partners at least thirty days before the decision is made. The obligation aims to provide the partners with a satisfactory level of information about the proposed operation . When there is one within the company, the Social and Economic Committee must also be informed and consulted about the operation . Such information must be complete and fair . Externally, the draft merger must be filed with the registry of the registered office of each of the companies involved in the operation, within thirty days preceding the first meeting that decides on the operation , before being the subject of a notice inserted in the BODACC, in accordance with Articles L. 236-6 and R. 236-2, and in the BALO, in the event that at least one of the two companies is listed, unless the companies have published the operation on their website. The notice contains almost the same information as that in the draft merger, including: the corporate name or trade name followed, if applicable, by its acronym, the form, the address of the registered office, the amount of capital, and the information provided in 1° and 2° of Article R. 123-237 for each of the companies participating in the operation; the corporate name or trade name followed, if applicable, by its acronym, the form, the address of the registered office, and the amount of capital of the new companies resulting from the operation or the amount of the capital increase of the existing companies; the valuation of the assets and liabilities whose transfer to the absorbing or new companies is planned; the exchange ratio of the shares; the expected amount of the merger or demerger premium as well as the date of the project and the date and place of the filings with the registry.

VIANDIER, The merger auditor, Eco. and Accounting June 1988, 3; TUBIANA, Merger and demerger of commercial companies, the merger auditors, the contribution auditors, and the statutory auditors, Gaz. Pal. 1988, 2, doctr., 575.

Cass. com., 7 January 2014, LawLex202200009500JBJ, holding that the contribution auditor, who wrongfully approved an overvaluation of contributions in kind that gave a misleading appearance of solvency to the absorbing company, is only liable for the aggravation of the asset shortfall he thus contributed to create, and not for the damage resulting from the continuation of the company's activity.

CA Rennes, 19 June 2007, LawLex202300002180JBJ, considering that while the merger agreement must provide the partners with information on the designation and evaluation of the assets and liabilities whose transfer to the absorbing company is planned, there is no obligation for the managers of the latter, who choose the methods to be used to set the values, to send them the reports prepared by the experts.

Labor Code, Art. L. 2312-8. - For an application, See Paris, 31 July 2009, LawLex202200010244JBJ, emphasizing that the social and economic committee must be informed and consulted at each stage and that the information provided must be sufficiently detailed from the outset, so that employee representatives can make a decision with a satisfactory understanding of the objectives pursued, the means to achieve them, and the consequences in terms of employment. - Also see, sanctioning an offense of obstruction by deliberately late communication of information on the merger, Cass. crim., 28 November 1984, LawLex202200009994JBJ.

CA Rennes, 19 June 2007, LawLex202300002180JBJ, considering that the Social and Economic Committee is not fully and fairly informed about the consequences of a merger when the documents provided contain only generalities and offer no details on the definition of the industrial project, the strategy of the new group, the business plan, and the impact on employment.

See refusing to release the guarantor of the absorbed company from its commitment in the absence of publication of the merger plan at the registry, Cass. com., 9 December 2008, LawLex202200009501JBJ.

Company Law (en cours)

223. Characteristics of the merger project.

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Les notions juridiques connexes

223. Characteristics of the merger project.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise