Merger Involving a Private Company (I.K.E.)
(Articles 42–45 of Law 4601/2019)
In previous articles, we examined the special provisions governing a merger involving a Limited Liability Company (E.P.E.). Corresponding special rules apply where a Private Company (I.K.E.) participates in a merger, due to its particular characteristics. Of central importance are the different types of contributions, the exchange ratio, the information provided to partners and the protection of creditors. In this article, we examine the special rules that supplement the general framework where an I.K.E. participates in a merger (Articles 42–45).
Applicable Provisions
The special rules apply where an I.K.E. participates in a merger, whether this is a merger by absorption or a merger by formation of a new company (Article 42). In a merger by formation of a new company, they apply mutatis mutandis, with the new company being regarded as the absorbing company (Article 22).
For matters not specifically regulated by Law 4601/2019, the provisions of Articles 43 et seq. of Law 4072/2012 apply supplementarily to the participating I.K.E. (Article 42). For example, the decision of the partners of an I.K.E. approving the merger is taken by a majority of two-thirds of the total number of corporate participations (Article 72 §5 of Law 4072/2012). The articles of association may require a larger majority or unanimity (Article 72 §6 of Law 4072/2012). Before the meeting, the applicable provision of the articles of association must be reviewed so that the decision also complies with the company’s corporate requirements.
Draft Merger Agreement – Written Report and Information (Article 43)
Article 43 supplements the general provisions of Articles 7 and 9 of Law 4601/2019, providing specific rules on the content of the draft merger agreement and the information provided to partners where an I.K.E. participates in the merger.
More specifically, the draft merger agreement must contain a specific justification of the exchange ratio of the corporate participations (Article 43 §1). The justification must support the conclusion that the exchange ratio is fair and reasonable. For the merging I.K.E.s, the exchange ratio takes into account all contributions made by the partners. It therefore includes capital contributions, non-capital contributions and guarantee contributions.
The specific justification has direct practical significance for the valuation and documentation of the allocation of the new corporate participations. If the exchange ratio proves not to be fair and reasonable, the merger is not annulled for that reason alone. Any affected shareholder or partner may, however, claim compensation from the absorbing company within twelve months of completion of the merger (Article 21).
Where the absorbing company is an I.K.E., the participations that it provides to partners of an absorbed I.K.E. must retain the type of contribution attached to their former participations (Article 43 §2). The same rule applies mutatis mutandis where the new company is an I.K.E. (Article 22). Thus, a capital, non-capital or guarantee contribution does not change its type merely as a result of the merger.
Finally, in order to simplify the merger procedure, the written report to the partners and the specific information are not required where all partners of the participating I.K.E. are simultaneously its managers (Article 43 §3). The exception concerns only the specific obligations under Article 9 §§1 and 3. It does not abolish the right to examine the documents or the other information rights. Before the exception is applied, the complete identity between the partners and managers must be confirmed and documented in the file. If even one partner is not a manager, the specific exception does not apply.
Availability of Documents for Examination by the Partners (Article 44)
Article 44 supplements the general provisions of Article 11 of Law 4601/2019 by specifying the period during which the partners of an I.K.E. may exercise their right to inspect the documents relating to the merger.
More specifically, the right to examine the merger documents may be exercised throughout a continuous period beginning no later than ten days before the meeting and ending upon its completion. This ten-day period is calculated by reference to the date on which the meeting is held, rather than the date on which it is convened. Planning must ensure the entire ten-day period without any interruption in access.
During this period, every partner may examine at the registered office the documents prescribed for the merger (Article 11). Upon a simple request, a partner is entitled to receive, free of charge, a complete copy or extract thereof (Article 11 §4). If the partner has consented to the use of electronic means, the copies may be sent by email.
The company may post the documents on its website for the same continuous period and, in principle, be exempted from making them available at its registered office (Article 11 §5). If the website permits downloading and printing throughout the entire period, the obligation to provide copies does not apply. In this specific case, however, the documents must also be made available to the partners at the registered office. The information must remain on the website for two years following the decision on the draft merger agreement (Article 11 §5).
Limitation of Claims Against Partners with Guarantee Contributions (Article 45)
The special provision of Article 45 of Law 4601/2019 concerns partners of an absorbed I.K.E. who hold participations corresponding to guarantee contributions and are liable towards third parties for company debts (Article 79 of Law 4072/2012). It does not create new liability as a result of the merger. It regulates the duration of claims against those particular partners following completion of the merger (Article 45).
If these partners are not personally liable for the debts of the absorbing company, claims relating to debts of the absorbed I.K.E. become time-barred three years after completion of the merger (Article 45 §1). If the claim against the company is subject to a shorter limitation period, the shorter period applies.
By contrast, this special three-year limitation period does not apply where the partners continue, after the merger, to bear personal liability for company debts, such as where they once again acquire participations corresponding to guarantee contributions or become general partners. Any liability arising from a guarantee agreement or cumulative assumption of debt is not equivalent to the personal liability arising from the status of partner, since it constitutes a contractual obligation concerning a specific creditor and a specific debt.
Liability does not exist towards a creditor who has consented to the merger in writing (Article 45 §2). The general provisions of the Greek Civil Code apply to suspension and interruption of the limitation period (Article 45 §3). If the claim falls due after completion of the merger, the limitation period begins when the claim falls due.
The special three-year limitation period restricts the duration of claims against the particular partners without itself constituting the basis of their liability, which derives from the guarantee contributions they had undertaken in the absorbed I.K.E. Accurate identification of guarantee contributions during due diligence is therefore essential.
In Summary: Practical Significance and Value
The participation of an I.K.E. in a merger requires a review not only of the corporate form but also of the type of contributions incorporated into each participation. The exchange ratio must be justified on the basis of all contributions, while the allocation of the participations must correctly reflect the relevant obligations. The required majority and the articles of association must be reviewed before the meeting. The same applies to the partners’ demonstrable ten-day access to the documents. Guarantee contributions require particular attention because they are connected with the partners’ personal exposure and a specific limitation rule. Defects may give rise to claims, challenges to corporate decisions and delays in registration or closing. A defective corporate approval may, subject to the statutory requirements, lead to judicial annulment of the merger (Article 20). A culpable breach of duties in the preparation or implementation of the merger may also establish liability on the part of managers for loss suffered by partners (Article 19). In the next article, we will examine the special rules governing a merger involving a European Company (SE).
Managing Partner
Koumentakis and Associates Law Firm
Note: This article forms part of a broader series published by our Law Firm on corporate transformations. In this series, we attempt an article-by-article analysis—always from a business-oriented perspective—of the principal relevant legislation, Law 4601/2019.