Mergers and acquisitions (M&A) generally address the legal area of corporate acquisitions. The acquisition of or the fusion with external companies is gaining further importance, especially in times of rapidly growing startup companies. Whether for the elimination of competition, expansion of the business area or to efficiently bundle business potential – motives for the merger of companies abound. You should place particular importance on the due diligence process when planning and performing a corporate acquisition. As part of our M&A transactions advice, our attorneys, among other things, draft the acquisition contract or review an existing contract for the specific determination of the rights and duties of the parties, the commitments and warranty exclusions of the seller. Our attorneys will also advise you on possible duties to obtain consent of a supervisory board, which may exist at a purchaser and/or seller, as well as similar stumbling blocks that may arise during a corporate acquisition.
In addition to addressing such questions udner aspects of civil and corporate law, aspects of family law, public law, and in particular anti-trust law must be taken into account when providing advice on M&A transactions. This applies, for example, if in the case of the participation of private persons the company to be sold represents the essential part of the assets of the seller, if permission for operating a company is linked to personal requirements or the relevant values relevant under anti-trust law are exceeded.
The acquisition of a company or the merger of companies can be performed according to the provisions of the Transformation Act. Two legal entities can be merged, for example, into a third, newly emerging legal entity, which is practiced in particular in the case of the merger of equally strong companies. If the participating companies are unequal, particularly in respect to their economic strength and reputation, the merger can also take place by one company absorbing ("swallowing") the other. Separate parts of a business operation or individual departments of a company can be acquired by splitting off from another company. In the course of providing advice on your M&A transaction, our attorneys will inform you about different options for the acquisition of a company and will propose you those suitable for your purposes.
The acquisition can also be performed under the sale of goods law, however. Two alternatives are essentially available, the Asset Deal on the one hand and the Share Deal on the other hand.
In an Asset Deal, a company's assets are sold and transferred individually. It is of vital importance that the company's major continuing obligations be transferred to the purchaser. Since the respective contractual partners must in principle consent thereto, it is not unusual that such an Asset Deal is taken as an opportunity for renegotiations. In terms of the contract, the principle of legal certainty of property law must be observed: The assets to be sold and to be transferred must be unequivocally defined in the contract or in an annex. When transferring real estate, possible certification obligations – and associated cost – must be taken into account.
In a Share Deal, no individual assets are sold and transferred, but rather shares in an incorporated company or commercial partnership. Assets remain assigned to the same legal entity, at which, however, a change of shareholders occurs. With the exception of shares of a GmbH (limited liability company), the transfer of a company's shares does not require notarization, even when the transferring company possesses real properties.
Our attorneys will be delighted to share their advice on M&A transactions and whether an Asset Deal or a Share Deal is the suitable option for your transaction.