Mutter-Tochter-Fusion (Package)

This Swiss law automated document was first released on 28 December 17 and has been updated to include the possibility of a rescue merger (Sanierungsfusion), which applies when the balance sheet of one of the involved companies shows a qualified capital loss or an overindebtedness.

This package of templates contains all legal documents required for a (intra-group) merger between a parent company (as absorbing and thus surviving company) and a subsidiary (as transferring company) in the form of a simplified merger (erleichterte Fusion), i.e. the merger agreement, the applications to the commercial registers as well as the resolutions of the supreme management or administrative bodies (i.e. board of directors (AG) or management (GmbH)) of the involved companies. The templates contained in this package are tailored for a merger between two corporations (Aktiengesellschaften) and/or limited liability companies (Gesellschaften mit beschränkter Haftung) and assume that the parent company holds 100% of the shares of the subsidiary. This package also provides for the possibility of structuring the merger as a rescue merger (Sanierungsfusion) pursuant to article 6 MerA. In this case, a licensed audit expert (zugelassener Revisionsexperte) needs to confirm that the statutory requirements are met. The templates are drafted in German. The applications to the commercial registers are drafted in a form which has proven to be acceptable for all commercial registers in German speaking cantons in Switzerland.

Please note that a merger between a subsidiary and its parent company where the subsidiary is the absorbing and thus surviving company can not be implemented by way of a simplified merger, but only by way of an ordinary merger.

For a simplified merger (erleichterte Fusion), neither a merger report needs to be prepared, nor an examination of the merger agreement needs to be conducted, nor an inspection right to the shareholders/members needs to be granted, nor is it necessary to present the merger agreement to the shareholders/members for approval.

The merger is based on a merger balance sheet (annual balance sheet or interim balance sheet of the transferring company) which needs to be audited if the transferring company has an auditor. The merger balance sheet is to be attached to the merger agreement and needs to be filed with the commercial register within the registration of the merger. Please note that this package does not contain a template of a merger balance sheet.

For the effectiveness of the merger, the parent company needs to register the merger with the commercial register by way of an application to the commercial register. The signed merger agreement including the merger balance sheet and the audit report (if any) as well as resolutions of the supreme management or administrative bodies of the involved companies approving the merger (if required, see below) are to be attached to such application. In case of a rescue merger, the confirmation of a licensed audit expert pursuant to article 6 para 2 CO also needs to be attached to the application. Further, the deletion of the subsidiary needs to be registered with the commercial register. Templates of both such applications to the commercial registers are included in this package.

In case the merger agreement is not signed by all members of the supreme management or administrative bodies (i.e. board of directors (AG) or management (GmbH)), separate resolutions of such bodies approving the merger are required. Such resolutions also need to be filed with the commercial register within the registration of the merger. Templates of such resolutions for both the surviving and the transferring company are included in this package.

Terms which are configurable to the user’s needs include:

• Details of the parent company;
• Details of the subsidiary;
• Details regarding the merger (i.e. type and date of the merger balance sheet, amounts of assets and liabilities to be transferred etc.);
• Details regarding the employees of the involved companies;
• Details regarding the excerpts of the commercial register (i.e. number of excerpts, delivery of excerpts etc.);
• Details regarding the attachments to be filed with the commercial register;
• Details regarding the resolutions of the board of directors (AG) or the management (GmbH) (in case resolutions of such bodies are required);
• Details on the signing of the documents; and
• In case of a rescue merger: Details regarding the overindebtedness or capital loss and details regarding the confirmation of the licensed audit expert.

Terms of Use

The purchase of this product is subject to the Supplier Terms as stated hereafter. The following Supplier Terms apply to any sale of legal documents where Meyerlustenberger Lachenal Froriep AG (MLL) is the seller and your contract partner. PartnerVine is not your contractual counterparty and you have no recourse to PartnerVine in respect of such purchases. Please consider, however, that the use of and access to the PartnerVine Platform by you is and remains governed by Part I, II and IV of the Terms & Conditions for the PartnerVine Platform.

With respect to the sale of legal documents by MLL to you the provisions as set out in Part III, Section 1, 2, 3 and 5 as well as Part IV, Section 1.2 of the Terms & Conditions for the PartnerVine Platform shall also apply to such purchases and are therefore incorporated in these Supplier Terms by reference. The provisions regarding the Use Rights / Use Restrictions as set out in Part III, Section 4 of the Terms & Conditions for the PartnerVine Platform are modified by these Supplier Terms in the following way: The first paragraph is not modified. The second, third, fourth and fifth paragraph are replaced by the following provisions:

• Users are permitted to access the document-generation interview for 90 days from the date of purchase.
• Users are entitled to export and download an unlimited number of copies of the document(s) in Word format.
• In case a legal entity has registered as a user, the document copies may be used by the employees of the legal entity and branches of the legal entity. However, the use rights of legal entities are not extended to any other company of a group of companies. Such other companies must obtain license rights on their own.
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• These Supplier Terms and the contracts based on them are exclusively governed by Swiss law with the exclusion of the Vienna Sales Convention.
• The competent courts in Zurich, Switzerland, shall have exclusive jurisdiction with respect to any dispute arising from or in connection with these Supplier Terms and the contracts between MLL and you.

Data Privacy Information

The collection and processing of your personal data entered in the course of the creation of your automated template is subject to the Privacy Policy for the PartnerVine Platform as referred to in the PartnerVine Terms.

Further the data may be collected and stored by the hosting platform of Coupa Software UK Limited, 17 Bevis Marks, 4th Floor, London EC3A 7LN (Coupa). Coupa provides the software with which automated templates offered by MLL are being created. Coupa’s current hosting platform provider is Amazon Web Services which stores the data in Dublin, Ireland.

Other Comments

Advice from group tax and accounting functions should be obtained prior to executing the merger agreement.