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rights may be waived; and the merger agreement need not be voted on in
the general assemblies.
Registration.
Merger decisions are to be registered in the trade registry.
Any decisions as to capital increases or other amendments of the articles of
association must also be registered. Upon registry, the merger enters into
force, the full succession is realized, the acquired company ceases to exist,
and the shareholders of the acquired company become the shareholders
of the acquiring company. The provisions of the Code on the Protection
of Competition are preserved. If a control change is concerned and
certain thresholds are exceeded, the approval of the Competition Board is
necessary.
Protection of Creditors.
There are detailed provisions on the protection
of creditors in the Draft Code. Creditors are entitled to request a warranty;
however, the report of the transaction auditor may determine that such a
warranty is not necessary. Even if the report finds it necessary, the company
may choose to pay the debt instead of giving a warranty. In other words, it
is possible to continue the merger by giving a warranty to the creditors or
by paying the debts. The aim of this provision is to prevent the frustration
or delay of the merger procedure upon the exercise of certain rights by the
debtors or shareholders.
The Lawsuit on the Scrutiny of Company Shares and Rights.
It is
possible to initiate a lawsuit for the cancellation of a general assembly
decision pertaining to the merger. However, this new type of lawsuit is
different. A breach of rights is claimed in this lawsuit. The merger is not
suspended upon such claim, but it is possible to require equalization. Thus,
the initiation of this lawsuit does not delay the merger.
Liability Arising out of Merger.
Many persons including transaction
auditor or managers are involved in the merger, and all these persons have
liability. This is a fault liability.
Conclusion.
It is possible to say that nothing has changed in the
main structure and construction of the merger. However, the issues which
cause problems in practice, such as the condition mandating the types of
the merging companies to be the same, are eliminated. The gaps in the
TCC are filled. The detailed provisions on the merger agreement are very
important. The procedures and stages of merger are clarified. You may see
a very clear road map upon review of the provisions on mergers. The duties