Page 219 - Albanian law on entrepreuners and companies - text with with commentary

Mergers may be effected either ‘by acquisition’ or ‘by formation of a new company’,
Article 215. Provisions on mergers by acquisition are applicable accordingly to mergers by
formation of a new company, Article 226 (1). The merger provisions cover both company
forms unless they specify rules for one of them.
The merger agreement must be drawn up in writing, Article 216 (1) a). It must, inter
alia, describe the share exchange ratio and any additional cash payment (c)) and the rights
stemming from the shares in the acquiring company, (ç) and d)). The agreement must also list
the rights which the acquiring company confers to single members or shareholders, in
particular the holders of special rights like shares without voting rights, preferential shares,
convertible and profit sharing bonds or the measures which are proposed for these persons
(dh)).
Article 216 (2) requires the merging companies to draw up a written report explaining
the merger agreement and setting out the legal and economic grounds for it, in particular the
interest exchange ratio and any special valuation difficulties which had arisen.
The merger agreement must be examined by authorized experts, Article 217. It is
important to mention paragraph 5 here: The involvement of experts may be excluded if all
members or shareholders of the merging companies so agree. This is a notable simplification
introduced by Article 2 of Directive 2007/63/EC which amended the Merger and Division
Directives.
In case the acquiring company is increasing its capital on occasion of the merger,
certain procedural requirements of the usual capital increase do not apply due to the ‘logic’ of
the situation of the merger where shares of the acquired company are exchanged with those of
the acquiring company, Article 219.
In order to have legal effect, the merger agreement requires approval by decision of the
interest holders of all the merging companies, Article 218 (1). This requires approval by
three-quarters of votes in the General Meeting, Articles 87 (1) and 145 (1). As sufficient
information for the members or shareholders is crucial, Article 218 (3) explicitly guarantees
members’ or shareholders’ right of access to all relevant documents and reports in addition to
the general information right established by Article 15.
With the registration of the merger and its publication, the acquired company ceases to
exist. All assets (including rights and obligations) are deemed transferred to the acquiring
company, and members or shareholders of the acquired company become members or
shareholders of the acquiring company, Article 220 (3).
Creditors of the companies involved in the merger are protected. They may request that
their claims are settled or secured and request the court to decide in case sufficient safeguard
has not been obtained, Article 221 (1).
Members or shareholders opposed to the merger are granted the right to sell their
shares at market price to the acquiring company. Alternatively, they may request the acquiring
company to exchange their voting shares against preference shares without voting rights,
Article 223 (1).

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