For each company involved, a restructuring generally requires the drafting of a restructuring deed and the appointment of an appraiser if an SA or an SARL is involved.
Restructuring deed and report
The details of the restructuring are presented in a restructuring deed, a draft which is prepared by the management of each of the companies involved in the restructuring process.
Two publication formalities must then be completed by each of the companies involved. First, the draft deed must be filed with the competent court where the registered offices of the companies are situate. Second, a notice describing the envisaged restructuring must be inserted in a legal journal one month before the date of the first general meeting to be held to vote upon the restructuring.
These formalities are a guarantee for the shareholders that no further amendments to the deed can be made, and they are also a means of informing the creditors of the companies concerned.
The role of the appraiser
One or more appraisers must be appointed whenever the restructuring is to occur between SAs or SARLs, or if it involves both SAs and SARLs. The appraiser prepares a written report on the envisaged restructuring, expressing an opinion on the value of the contribution in kind and on any special benefits granted, and on the fairness of the exchange ratio for the shares. The appraiser must also verify the accuracy of the liabilities to be borne by the absorbing company.
Decision
The decision as regards restructuring is generally made by each company involved in accordance with the conditions applicable to an amendment to its articles of association, using the procedure applicable in the event of an increase in capital or the winding-up of the company. Different company types have their distinct approval methods.
Simplified restructuring procedures
Simplified restructuring is allowed in the case of an SA or SARL when the absorbing company holds the whole of the share capital of the absorbed company or companies throughout the period between the date on which the restructuring deed is filed with the court and the date on which the restructuring is completed.
A simplified procedure is also applicable when the restructuring is effected by means of the creation of new companies, when no contribution is made order than the absorbed companies.
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