Mergers & demergers
For mergers and demergers, specific procedures are prescribed by the Companies Code (NL / FR). The merger or demerger proposal drafted by the board of directors must be filed at the commercial court at least 6 weeks before the general meeting of shareholders of each company involved.
If the company does not have a statutory auditor, it will have to appoint an auditor member of the IBR/IRE (NL / FR) or an external accountant.
The auditor has to report on the merger / demerger proposal and in particular on
- the proposed exchange ratio between shares and
- the valuation methods used.
The auditor describes the valuation methods used and based on which the exchange ratio has been fixed, and examines the weight attributed to each method. The report conclusion determines whether the exchange ratio is reasonable and whether the valuation methods used are appropriate and justified. The auditor may require any information needed on all matters examined from all the companies involved in the merger.
The board of directors also has to prepare a specific report to further explain the merger / demerger. The merger / demerger proposal and the reports of the auditor and of the board are presented to the shareholders of each company involved in the merger / demerger. The financial statements of the 3 preceding years should also be made available to the shareholders, together with the reports of the board of directors and of the statutory auditor, if applicable. If the merger / demerger proposal is to be filed at the commercial court more than six months after the end of the previous financial year, a statement of assets and liabilities (drawn up as of a date not more than three months previously) must be prepared and made available. The merger / demerger (and related change in the articles of association [bylaws]) is effective only after approval by the shareholders of each company involved, in a meeting held in front of a notary and transcribed in an official notary deed.
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