The institution of the merger as a matter of commercial law does not have a broad regulation, having only nine articles and/or specific provisions that the corporate traders must comply with to carry out the merger per se, making it a complex process due to the different ways of applying the legislation by the Registrars and the involvement of external entities that are not governed by commercial law, for a merger to have effects and be valid.
The merger should be considered as a corporate strategy to achieve its business objectives, such as accessing new markets, acquiring technology, expanding the range of products or services, taking advantage of financial synergies, among other objectives. This strategy must be applied after the analysis of all the areas of a company, such as: accounting, financial, operational, commercial, tax, customs, among others; by the Shareholders or Partners who, in the General Assembly corresponding to the type of company, make the decision to carry out a merger of companies.
The merger of companies, in general terms, occurs when two or more companies merge in such a way that at least two or more (companies) lose their legal personality. The merger of companies can take two forms, the first one: when all the merging companies disappear, to form a new entity, based on the assets of the previous ones that disappear or are dissolved; and the second and more common one: when one of the merging companies subsists and absorbs the assets of the other or others that disappear. In both cases or forms, the new company or the incorporating company, in the second case, acquires the ownership of rights and obligations of the dissolved companies.
Mergers are only applicable to corporate traders, hence the title of Chapter XI of the Commercial Code Decree 73: "OF THE MERGER AND TRANSFORMATION OF COMPANIES"; 2. The right of each one of the companies to merge, as long as the unanimous consent of the partners is obtained, unless otherwise provided in the Articles of Incorporation, therefore, the agreement could be taken by simple majority (one half plus one) or by qualified majority (seventy-five percent of the capital); 3. The obligation of each of the companies involved in the merger to publish the merger agreement, the last balance sheet of the companies, and the system established for the extinction of the liabilities in the case of the disappearing companies, for the knowledge of the creditors, who must give their express or tacit authorization for the companies to merge.
Once the owners of the companies have assessed all the pros and cons and have a clear picture of what is desired and what will result from the merger, the merger is a fairly simple process in its corporate and commercial stage, but when more entities are involved, it becomes complex due to the legal procedures and deadlines that must be met, involving third parties, Among them, several governmental institutions such as the tax authority and the authority that authorizes economic concentrations, and if one or more of the companies to be merged had a special regime to operate, the authority specialized in such regimes, each governmental institution has its own procedure to authorize a merger that is not necessarily the correct or the most practical one. The conclusion of a merger process in its mercantile stage is obtained when, once the aforementioned publications have been made and the term of three (3) months has elapsed, the Merger Agreement is registered before the Public Registry of Commerce, which may be: the deed containing the new bylaws or the amendments that were necessary in the articles of incorporation of the absorbing company; and/or the articles of incorporation of the new entity whose principles and/or provisions must be governed by the type of company that was created, which may be: Corporation, Public Limited Company, Public Limited Liability Company, Public Limited Liability Company, Public Limited Liability Company, Public Limited Liability Company, Public Limited Liability Company, Public Limited Liability Company, Public Limited Liability Company, or Public Limited Liability Company: Corporation, Limited Liability Company, limited partnership, limited partnership by shares, among others. However, a merger is operationally perfected when the tax authority issues the corresponding resolution canceling the National Tax Registry, cancelling all the obligations of the companies that disappeared.
In conclusion: once the permits of the companies that disappeared or were absorbed are cancelled, the absorbing or new company acquires all the assets, rights and of course the obligations of the previous ones, accounting movements are made, notifications before private entities such as the institutions of the financial system, new contracts are signed with suppliers, creditors and employees if necessary, and as for the representation, the person who administers and/or represents the new company or absorbing company is the one named in the Merger Agreement.
