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The company’s supreme body needs to adopt separate two resolutions in connection with the restructuring process, unless the memorandum of association says otherwise. In the memorandum of association (deed of foundation) the founders may stipulate that the supreme body is allowed to adopt a final decision on the restructuring proposal, provided that the executive officers prepare the documents necessary for the restructuring.
In the course of restructuring (which may consist of a change in the company’s form, a merger, or demerger/divestment or other) both the draft and the final balance sheets and the underlying inventories must be audited by an independent auditor.
The first decision involving the restructuring:
- Is where the shareholders, founders of the companies voice their agreement (or disagreement) with the restructuring, and whether they wish to become members of the successor company
- Is where they decide on the form the restructuring should take
- Is where they decide on the business format the successor company should take
- Is where the supreme body must appoint an independent auditor
- Is where they have to determine the roll-over dates for the draft balance sheets, and cite the draft inventories as the documents forming the financial basis for the restructuring
The second decision on the restructuring involves the adoption of the drafts, meaning:
- Adoption of the draft inventories and draft balance sheets,
- Adoption of the articles of association of the successor company
- Adoption of the draft settlement with members (shareholders) not wishing to take part in the successor company
- Adoption of the decision on the shares of the successor company's members (shareholders) in the registered equity
In the course of the restructuring (change in the company form, merger, demerger/divestment or other) both the draft and the final balance sheets, together with the underlying inventories, must be audited by an independent auditor. The Company’s own auditor, who has audited the company’s books or examined the value of an in-kind contribution within two fiscal years preceding the reference date of the draft statement of assets and liabilities prepared for the restructuring, may not conduct this audit. The auditor who examined the draft statement of assets and liabilities of the restructuring may not be appointed as the auditor of the successor company for a period of three years following the registration of the new business configuration.