By merging them. Reorganization of an LLC through mergers and acquisitions: purpose, nuances, procedure

Often, in order to optimize business processes, achieve higher economic result The owners of several companies decide to merge the business. The procedure for reorganizing an LLC by merging is strictly prescribed by law, however, it has several options, each of which leaves a certain imprint on the status of the elements included in the new formation.

Among the forms of reorganization legal entity The Civil Code of the Russian Federation distinguishes only two, corresponding to the merger of companies - merger and accession (acquisition)

Both the merger of companies and the accession (acquisition) are methods of reorganization prescribed in Art. 57 of the Civil Code of the Russian Federation, as two variants of the procedure with a slightly different order of execution and outcome. So, in a merger, all (two or several) firms take part on an equal footing, all cease to exist, and as a result, a completely new legal entity arises.

Absorption also implies the dominance of one of the reorganized firms, which continues to operate under the same name and with the same status as before the procedure. The second, merging company, ceases to exist and transfers all its rights and obligations to the first.

Making a distinction by procedure, it should be noted that it is approximately the same for both methods, with the exception of the amount of work:

in the event of a merger, all stages will have to be completed for each of the merging companies;
in the case of merger, procedures are carried out only in relation to the merged (absorbed) company.

The end date of the association in case of a merger is the date of registration of a new legal entity, in case of absorption - the date of liquidation of the absorbed company.

Table: Advantages and Disadvantages of Mergers and Acquisitions

Circumstance group	Merger	Acquisition of one company by another
Circumstances that can be attributed to the benefits	· Ability to avoid tax penalties imposed after the reorganization on both companies; · an opportunity to get rid of a negative reputation in the market - a new legal entity will have a new name; · the founders and members of the governing bodies are part of the newly formed company on an equal footing (the distribution of "spheres of influence" is determined by an agreement concluded in advance).	· Less labor, time and financial costs associated with re-registration; the opportunity to maintain a positive business reputation of one of the companies; · the ability to retain the name, licenses and permits of a company that remains in operation; exemption from VAT on transfer accounts receivable.
Circumstances attributed to disadvantages	· The complexity of the process and time costs increase several times (in comparison with the merger): for all merging companies, without exception, an inventory is carried out, a deed of transfer is drawn up, an accounting report is drawn up; · licenses are lost for both (instead of one - as in case of merger) companies (except for those that both companies had at the same time, but they will also need to be reissued); · loans for both companies will have to be re-registered, while the bank will again assess solvency; · property that requires state registration of the transfer of rights will have to be re-registered for both merging companies.	· The merging company, in particular, its management bodies lose most of their influence; · it will be necessary to re-register (only for the merging companies): licenses, loans (with a new check of solvency), property requiring state registration.

What are the goals of the reorganization-unification

Optimization of business processes is the main goal of the merger

In general, both a merger and an acquisition can pursue the following goals:

optimization of labor costs, economic and business processes, document flow of companies (for example, the main and subsidiary, if there is a "vertical" merger);
spreading a positive reputation and/or getting rid of a negative one;
consolidation of business, the conquest of new markets for goods or services;
pooling the losses of companies to reduce the tax base;
transfer of property from one (for example, merging) company to another (for example, acquiring one) without paying VAT (in case of ordinary alienation, this tax must be paid).

Thus, business consolidation in either of the two ways can be beneficial for a number of reasons. When choosing between them, you should ask yourself the following questions:

Is it advisable to liquidate all up to one company or one of them (according to business reputation, the presence of strategically important licenses, etc.) is fully capable of continuing its activities? If the second option is chosen, it is better to use join.
Are the owners ready for increased labor costs, long periods of the procedure, downtime due to the renewal of important licenses, additional costs? If not, then it is better to choose joining.
Do the owners of the merged businesses want to remain “on an equal footing” in terms of managing the new company? If so, then the best option is a merger. But to some extent, management and income issues can be resolved in a reorganization agreement by planning a redistribution of the participants' shares.

When is it appropriate to resort to liquidation through a merger or acquisition?

Liquidation of one or more companies - a stage of the reorganization process in the form of a merger or acquisition

Liquidation is not a form of reorganization of legal entities in accordance with civil law. This is a separate procedure that involves the termination economic activity firms and its exclusion from the Unified State Register of Legal Entities. However, liquidation is constituent element reorganization in the form of a merger or acquisition.

Therefore, when talking about the advisability of liquidation through a merger or acquisition, one should:

Consider whether or not there is room for improvement economic situation by joining a new company.
To study the range of possible partners in the reorganization with the preparation of specific forecasts for joint development.
Choose a method of reorganization based on the above criteria.

The procedure for the reorganization of an LLC by merging

The merger procedure (compared to acquisition) is more complicated and voluminous. In addition, all the actions that take place during an acquisition take place within the framework of a merger. Therefore, the composition of the stages specifically for the merger will be given below:

Approval of the merger decision by the managing body of each company.
Notification of the inspection of the Federal Tax Service of the intention to merge the companies.
Publication of an announcement of the intention to unite in the media. Notification of counterparties.
Informing employees.
Obtaining approvals - if necessary.
Carrying out an inventory and the formation of a transfer act.
Appointment of a joint meeting of participants of all merged companies (shareholders, for example).
Collection of documents and payment of fees.
Submission of documents to the inspection.
Obtaining a certificate of establishment of a new company.

The procedure depends on the amount of work, the presence or absence of the consent of creditors to transfer the debt, the need to agree on the reorganization, and can last an average of three months to a year.

Merger decision approval

Each of the companies participating in the merger (and there can be from two to infinity) must make its own decision about joining the procedure. The competence of which management body this issue belongs to, and, accordingly, the form for making such a decision - all this, as a rule, is spelled out in the company's charter. But in general, one should be guided by special norms of federal laws regulating the activities of organizations of a specific organizational and legal form (Law from LLC, Law on JSC, etc.).

The law does not prohibit companies of various organizational and legal forms from uniting in any of the ways under consideration.

In LLCs and ALCs, the decision is made by the board of founders, in joint-stock companies - by the meeting of shareholders, in budget institutions- Founder (Government).

Thus, most often the decision is clothed in the form of minutes of the meeting, which should indicate:

the results of voting on the main issue and the final decision;
date of the planned reorganization, approximate terms and procedure for carrying out the main stages of the procedure;
the composition and powers of the commission that will deal with organizational issues;
funding sources for the costs of the procedure.

In accordance with Art. 52 of the Federal Law “On LLC”, the reorganization agreement and the deed of transfer are also subject to approval by the meeting of participants.

Notification of the tax office

The IFTS notification is drawn up in the approved form

Before proceeding directly to the procedure, the law (Article 60 of the Civil Code) obliges companies embarking on reorganization to notify the tax inspectorate of their intention. In this case, several points should be taken into account:

The obligation to notify lies with the firm that was the last to hold a meeting of participants, at which a positive decision was made. The letter must be sent within three days of this last decisive meeting.
The choice of the territorial division of the Federal Tax Service in some cases is difficult - after all, often the merged companies are located in different areas and are serviced by different tax authorities. It is most preferable to choose in advance the location of the future united legal entity (at the location of one of the companies) and apply to the tax office for this area.

The inspection notification form is special - С-09–4, approved by order of the Federal Tax Service of Russia dated 09.06.2011 No. On the basis of this notification, a record is made in the unified state register about the start of reorganization processes (for each of the merged legal entities). Documents to complete the procedure subsequently must be submitted to the same territorial division of the inspection.

At the same time, the FIU and the FSS must be notified of the upcoming reorganization.

Publication

Publication of information about the reorganization - mandatory requirement the same sixtieth article of the Civil Code. The disclosure rules are as follows:

the announcement is submitted by the last company that made the decision to merge on behalf of all those participating in the reorganization;
posted in the State Gazette specialized edition publishing information on the registration of the emergence and termination of the activities of legal entities;
periodicity and frequency of publications - twice with a break of a month.

The publication must contain the following information:

details of each of the merged companies;
all available data on the new legal entity planned for creation;
the procedure and conditions for the submission of creditors' claims.

Notice to creditors

Creditors should be notified in order to avoid litigation due to the fact that they missed the publication

Notification of creditors about the transfer of obligations to a new person - crucial point during reorganization, although it is not directly provided for in the legislation (it is assumed that counterparties learn about the reorganization from publications). In practice, the tax authorities require proof of their notification in order to avoid litigation later.

In Art. 60 of the Civil Code defines guarantees for counterparties of firms entering into reorganization - this is the right to demand early performance of a debt or termination of an agreement with compensation for losses. But they can make such a statement only within thirty days from the date of the last publication of the reorganization. Otherwise, the claim is not accepted, and the obligation passes to the successor - the newly formed legal entity.

A notice to a creditor or debtor is a free-form letter containing the same list of information as the announcement of reorganization. It is sent by registered mail with return notification of delivery to the addressee.

Informing employees

According to the Labor Code of the Russian Federation, employees of the reorganization should be notified one month in advance

The teams of all merged firms are subject to transfer to the newly formed employer (the employer does not have the right to dismiss employees in connection with the reorganization - Article 75 of the Labor Code). At the same time, according to labor law, about changing such essential condition each employee must be informed at least one month in advance. If, upon notification, he refuses to work under the new conditions, labor Relations with him must be terminated under Part 6 of Art. 77 TK.

Getting approvals

In some cases, one solution authorized bodies there are not enough companies willing to merge. For instance:

if the total assets of the participants exceed the amount of 6,000,000 rubles. - prior to the merger, the permission of the antimonopoly service is requested;
if the participants financial companies- the reorganization will require the consent of the Bank of Russia;
for the participants of the procedure - state enterprises and institutions, a corresponding decision of the Government is required.

Carrying out an inventory and drawing up a transfer act

The act of transfer is the central document of the reorganization, designed to fix the list of transferred property and obligations, describe its condition, determine the procedure and conditions for succession (Article 58 of the Civil Code). The deed of transfer is drawn up by each enterprise participating in the merger on the basis of the inventory data.

The law does not establish specific dates and terms for conducting an inventory, drawing up an act. It is better if they coincide with the end of the quarter or year.

The deed of transfer can be issued in one of two ways:

First meeting of new company members

At the general meeting, the participants of the new society resolve management issues, form new executive bodies. The results of the meeting are documented in the form of a protocol and a decision.

Additionally (if it was not decided earlier, for example, when concluding a reorganization agreement), the meeting may determine the head of one of the merging firms, who will act as an applicant for state registration of a new legal entity.

Payment of state duty and submission of documents

Among the documentation submitted to the tax office at the final stage of the reorganization - the state registration of a new legal entity - it is necessary to submit a document confirming the payment of the fee. It's better to do it in advance. The amount of the state duty is established by Art. 333.33 of the Tax Code of the Russian Federation and today is 4,000 rubles.

When heading to the tax office, one should not forget about the preliminary notarization of the application.

Photo gallery: application form P12001

Page 1 must contain the name of the legal entity Page 2 contains company address details Page 3 - information about the legal entity being reorganized Page 4 - page about the participant - legal entity Page 5 - information about an individual who has the right to act on behalf of the company without a power of attorney Page 6 - continuation of information about the representative - natural person Page 7 - a list of activity codes for the company being created Page 8 - information about the applicant Page 9 - continuation of information about the applicant Page 10 - commitment of the applicant

The package of documents for state registration of a reorganization-merger is as follows:

An application drawn up in the form P12001 and certified by a notary (the applicant must appear personally at the notary).
The decision to enter into the merger procedure - from each of the merging companies.
The decision of the meeting of the founders of the newly created legal entity on the reorganization and creation of management bodies.
Merger agreement concluded between companies and approved by their authorized bodies.
Constituent documentation of the merging firms.
Constituent documentation of the newly created organization.
Transfer deeds.
Evidence of publication of information in the media, notification of creditors, the FIU and the Social Insurance Fund.
Document on the payment of state duty.

The inspection is obliged to carry out registration actions within five days from the date of acceptance of the complete package of documentation.

An important moment of reorganization for accountants is the preparation of the final and introductory financial statements. The first must be dated from the date preceding the date of entering information about the new legal entity in the Unified State Register of Legal Entities. The second - the date of entry in the register of data on the establishment of the company.

You can combine two or more companies in one of two ways - a merger or an acquisition. The choice between them depends on many points, but absorption is much less labor intensive. The results of the acquisition and merger are legally different, but economically there are no big differences between them.

"). In the final article, we will look at the features of the merger. Do I need to close my checking accounts? Should income and expenses be recorded if the debtor and creditor are involved in the merger? We answered these and other questions in this article.

The initial stage of the merger

A merger is a form of reorganization in which several companies cease to exist as separate legal entities and are merged into one, larger entity.

The sequence of steps to be followed in the first stage of the merger is the same as in other forms of reorganization. We have given all the necessary actions in the table.

Steps to take in the early stages of a merger

Action	Who commits
Make a decision to merge	Owners	By decision of the owners
Send the decision on the merger to the "registering" IFTS and attach a written message on the reorganization		Within three working days after the date of the decision to merge. Next, the IFTS will make an entry in the state register about the beginning of the reorganization
Inform the FIU and the FSS in writing about the upcoming reorganization		Within three working days after the date of the decision to merge
Notify all known creditors	Each company involved in the merger	Within five working days from the date of submission of the application to the IFTS
	The company that last decided to merge	Twice with a frequency of once a month
Prepare founding documents merger organization	Persons responsible for the reorganization	Deadlines not set
Conduct an inventory of assets and liabilities	Each company involved in the merger	Immediately before drawing up the deed of transfer

deed of transfer

The next step is the preparation of the deed of transfer. Each company participating in the merger must draw up this document. The date of the transfer deed can be any. But it is better that it coincides with the end of the quarter or year - as stated in paragraph 6 of the Guidelines for the formation of accounting records during reorganization *.

The deed of transfer must contain provisions on succession (Article 59 of the Civil Code of the Russian Federation). This is information about the amounts of receivables and payables, as well as about the property transferred to the newly created company. The value of property according to the transfer act can be market, residual, initial, or corresponding to the actual cost of inventories (clause 7 of the Guidelines for the formation of accounting records during reorganization).

There are no restrictions on the form of the deed of transfer. Most often, it is drawn up in the form of an ordinary balance sheet and transcripts are applied for each of the lines. Inventory sheets can be used as transcripts. There is another option: to abandon the balance sheet, but simply list all types of assets and liabilities (fixed assets, intangible assets, "receivables", "creditors", etc.) and indicate their value. And in separate applications, provide lists of objects, debtors, etc. (approximate samples of the transfer act can be downloaded or).

Period until completion of the merger

Then it is necessary to prepare documents for reorganization. This is a deed of transfer, an application for registration of a company created by merger, a decision on reorganization, a document confirming the payment of state duty, etc. A complete list is given in paragraph 1 of Article 14 of Federal Law No. 129-FZ of 08.08.01.

The package of documents should be brought to the "registering" IFTS and wait until the inspectors make an entry in the Unified State Register of Legal Entities. With the advent of this record, the predecessor companies will cease to exist, and a new successor organization will appear in their place. But until the waiting period is over, the predecessors continue to work: they accrue salaries, depreciation, draw up a "primary", etc.

Final financial statements of predecessor companies

Each company participating in the merger must draw up the final financial statements on the date preceding the date of the reorganization entry in the Unified State Register of Legal Entities. The reporting consists of, and, an explanation and an auditor's report (if the company is subject to a mandatory audit).

The final accounting should reflect the transactions made in the period from the moment of signing the transfer act to the closing of the predecessor organization. Because of these operations, the indicators of the final balance sheet will not match the indicators of the transfer act.

In addition, each predecessor company must close Account 99 Profit and Loss. Profit can be distributed according to the decision of the founders.

After the final reporting, the predecessors should not submit balance sheets and other documents, since the last reporting period for them is the time from the beginning of the year to the date of the merger.

Introductory reporting of the newly created organization

An organization created as a result of a merger must draw up introductory financial statements on the date when an entry on the reorganization is made in the Unified State Register of Legal Entities. In the lines of the opening balance sheet there will be the sum of the corresponding indicators of the closing balance sheets of the predecessors. The exception is mutual settlements between predecessors - for example, when one of them was a borrower and the other a lender. Such indicators are not summed up, since if the debtor and the creditor coincide, the obligation is terminated. Also, in the introductory reporting of the assignee, it is not necessary to summarize the data of the profit and loss statements of the reorganized companies.

Particular attention should be paid to the authorized capital of the successor organization. If it is less than the sum of the predecessors' capital, then the difference is reflected in the balance sheet in the line "Retained earnings (uncovered loss)". If the authorized capital of the successor is greater than the amount of capital before the reorganization, such a difference in the balance sheet does not need to be shown. In both cases, the accountant does not make any postings.

Introductory reporting must be submitted to the Federal Tax Service Inspectorate either immediately after registration or at the end of the current quarter - depending on what is more convenient for your inspector.

"Primary" in the transition period

After the merger, the newly created company "inherits" the contractual relationship of the reorganized legal entities. But the treaties themselves are still concluded on behalf of the predecessors. The question arises: is it necessary to sign additional agreements on the replacement of the parties to the transaction? Or can you just send informational letters to counterparties, which indicate the name and details of the successor company?

We believe that additional agreements are not needed, because all the rights and obligations of each of the predecessor companies under the deed of transfer (clause 1, article 58 of the Civil Code of the Russian Federation) are transferred to the newly created organization. This also applies to contractual relationships. This means that in order to continue cooperation with suppliers and customers, an extract from the Unified State Register of Legal Entities and a deed of transfer is sufficient.

As regards invoices, certificates of completion and invoices, they are issued on behalf of the predecessors before the merger date, on behalf of the successor at the merger date and thereafter.

Do I need to close my checking accounts?

Often accountants doubt whether the predecessor company should close its current account before the merger. There is no such obligation under the law. In other words, the organization can transfer the account to the successor, like any other property and obligations. To do this, it is enough to bring new constituent documents to the bank and reissue the card with signatures.

Who pays taxes for reorganized companies

The newly formed organization is the sole successor, and the obligation to pay taxes for all reorganized companies is transferred to it (clause 4, article 50 of the Tax Code of the Russian Federation). In this regard, the inspectors must transfer the balances from the settlement cards with the budget of each predecessor to the personal account of the assignee.

Who submits declarations for reorganized companies

If possible, predecessor organizations should report on all taxes until the moment of merger, that is, before making an entry in the single state register. But in practice, they usually do not have time to do this. Then the very next day after the reorganization, the inspectors at the place of registration of the predecessor refuse to accept declarations. In this case, all tax reporting will have to be handed over to the newly created organization in its inspection. In the case when, after the reorganization, errors of the predecessor are discovered, the assignee hands over the “clarification” for him.

Please note: the deadlines for submitting declarations are not shifted due to reorganization. For example, for the year the assignee is obliged to report no later than March 28 next year- both for himself and for each predecessor.

If during the merger the debtor united with the creditor

It happens that one participant in the merger is the debtor, and the other participant is the creditor. Then, after the reorganization, the creditor and the debtor become one, and the debt is automatically repaid. This means that due to the merger, the debtor will not have to repay the debt, and the creditor will not be able to get his money back.

Is the debtor obliged to show income on the date of reorganization, and the creditor is required to show expenses? tax code does not address this issue. But officials believe that taxable income from the debtor does not arise. This point of view was expressed by the Ministry of Finance of Russia in letters to and. True, they speak of reorganization in the form of affiliation. But, in our opinion, the conclusions are applicable in the event of a merger.

In addition, similar conclusions can be drawn regarding the costs of the creditor. In other words, at the date of the merger, the creditor is not entitled to include the repaid debt in expenses.

A special case is the situation when a supplier and a buyer participate in the merger, which before the reorganization transferred an advance payment to the supplier. In such circumstances, the seller has the right to deduct VAT previously accrued from the prepayment before reorganization. The buyer, on the contrary, is obliged to restore the tax previously deducted when transferring the advance. The same position is given in the letter of the Ministry of Finance of Russia dated September 25, 2009 No. 03-07-11 / 242. Although the letter refers to an accession, it can also be used as a guide in the event of a merger.

Tax base for VAT

The newly created company can deduct , which one of the predecessors paid to sellers or at customs, but did not have time to deduct before the merger.

The successor must confirm the right to deduction with an invoice and primary documents by deal. It is also necessary that the goods (results of work, services) acquired by the predecessor be registered for use in VATable transactions. There is one more obligatory condition: the predecessor must submit documents confirming the payment (clause 5, article 162.1 of the Tax Code of the Russian Federation).

An organization formed as a result of a merger may deduct VAT that its predecessors accrued upon receipt of an advance. The successor can do this after the sale of the prepaid goods, or after the termination of the transaction and the return of the advance. There is one limitation here - the deduction must be accepted no later than one year from the date of return (clause 4, article 162.1 of the Tax Code of the Russian Federation).

In practice, many problems arise due to the date of invoices issued in the name of predecessors. If the documents are dated after the reorganization, then the inspectors do not allow the deduction to be accepted. In such a situation, the accountant can only contact the suppliers and ask for corrections.

Income tax reporting

A reorganization in the form of a merger does not interrupt the tax period for . This is explained by the fact that the company is not a taxpayer, but a tax agent, and labor relations with personnel continue (Article 75 of the Labor Code of the Russian Federation). This means that there is no need to submit any interim reporting on personal income tax during the reorganization.

There is one important nuance here: if, after the merger, the employee brought a notice for a property deduction, where the predecessor organization is indicated as the employer, the accounting department of the successor company must refuse him. The employee will have to go to the tax office again and take another notice, which confirms the deduction related to the assignee. Such explanations were given by the Ministry of Finance of Russia c. In practice, inspectors everywhere follow these clarifications and cancel the deduction provided under the "outdated" notice.

Insurance premiums and reporting to funds

One of the most controversial issues that arise in connection with the merger is: should the newly created organization calculate the tax base for insurance premiums from scratch? Or does it have the right to continue the countdown begun by its predecessors before the reorganization?

The amount of contributions directly depends on the answer. If the assignee resets the base, it will automatically lose the right to exempt accruals from contributions that exceed the limit value (in 2011 it is equal to 463,000 rubles). If he “inherits” the base, then along with it he will receive the right not to charge contributions for the excess amount.

In our opinion, in a merger reorganization, the successor company should start over to determine the contribution base. This is explained by the fact that for an organization created after January 1, the first settlement period is the time from the date of creation to December 31 (part 3 of article 10 of the Federal Law of July 24, 2009 No. 212-FZ). At the same time, there are no provisions in this law that would talk about the transfer of the base “by inheritance”.

If the predecessors did not pay contributions before the merger or did not report to the funds, the assignee will have to do this. This duty enshrined in part 16 of Article 15 of Federal Law No. 212-FZ.

* Guidelines for the formation of financial statements in the implementation of the reorganization of organizations, approved by order of the Ministry of Finance of Russia dated 20.05.03 No. 44n.

The merger of companies is one of the possible forms of their reorganization established by the Civil Code of the Russian Federation (Article 57). Compound commercial firms contributes to the consolidation of business, consolidating the labor and material resources of several organizations. The new company formed during the merger assumes the obligations of the "merged" enterprises, including to their creditors.

Aims and consequences of the merger

The merger of organizations is always a voluntary transaction for all its participants. As a result of its commission, several autonomous companies are combined into one, economically more powerful firm. It becomes the assignee of all the rights and obligations that the merged legal entities had before the merger.

The merger of two or more companies may serve various purposes, for example:

expansion of the product range (types of services);
the desire to carry out more active expansion into the market, which requires additional resources;
the expectation that it will lead to an increase in stock prices;
increase in brand awareness, a legal opportunity to sell high-quality, but not hyped goods, under a well-known brand;
a decrease in the number of competing companies of the same type operating in the same economic space (for example, in one city);
reduction of financial and labor costs;
desire to become a monopoly in the market.

In accordance with the law, the merger of companies leads to the formation of a new legal entity (58th article of the Civil Code, paragraph 1). This happens regardless of how it was carried out:

through the connection of part of the assets different companies- in the form of an investment contribution to the company being created (at the same time, the organizations participating in the merger continue to work in their usual capacity);
through the complete liquidation of the merged companies and the transfer of all their assets and liabilities to the new organization formed by them.

The merger of companies is sometimes confused with their takeover. However, these steps are not identical. "Mathematically" examples of mergers and acquisitions of organizations can be represented as follows:

company L + company M = company N (merger);
company L + company M = company L (attachment).

The main difference lies in the peculiarity of succession: if, during the merger, the rights and obligations of each participant are delegated to the established company, then upon merger, they transfer from the liquidated company to the one that remains on the market.

Mergers and acquisitions of companies: what is the difference

From the merger of commercial companies, their absorption should also be distinguished, which does not imply equality of the merging organizations. During a takeover, one firm establishes full control over another firm, acquiring at least 30% either in a block of shares (if it is a joint-stock company) or in the authorized capital (if it is a limited liability company). Gradually, other shares are “cleaned up”, after which the creators of the absorbed organization lose their rights to it.

Absorption usually ends with the fact that the smaller, weaker organization ceases to exist or becomes a structural unit of the "absorber". As a rule, large corporations resort to this method, enlarging their business and eliminating competitors.

Mergers and acquisitions of companies: examples

There are many examples of mergers and acquisitions of companies. Some of them were successful, others subsequently proved to be ineffective. Takeovers on Russian market, especially in the 1990s, were often of a criminal nature, and rightly called "racketeering".

One example of a merger commercial organizations on the territory of Russia is the formation of UMMC - the Ural Mining and Metallurgical Company. This holding has now united the assets of more than forty enterprises - processing industries, enterprises of non-ferrous and ferrous metallurgy, mechanical engineering, while becoming the largest copper producer in the Russian Federation.

A striking example of an organization that actively uses the acquisition of companies is the Google Corporation. Experts say that during its existence it "ate" more than a hundred different companies, including very well-known ones. Among the victims of the corporation are organizations such as Youtube, Android, AOL and many others. Google made its largest takeover in 2011, acquiring Motorola Mobility in this way.

Acquisition and merger of companies is a series of economic and legal procedures aimed at combining several organizations into one economic unit. The merger procedure is based on the principles of voluntary consent of all parties to the transaction.

Mergers and acquisitions of companies: main features of the processes

Economic theory and regulatory framework Russian Federation explains the concept of "merger of companies" in a different way than analogues of foreign experience.

So, with a foreign interpretation under merger companies refers to the combination of several operating firms, the result of which is the emergence of a single business unit.

If guided by the legislative acts of the Russian Federation, then in the case mergers companies, a new legal entity is created, which becomes the assignee of all obligations and rights of the reorganized companies in accordance with the deed of transfer (paragraph 1 of article 58 Civil Code RF), and the participants themselves, who were considered separate companies before the merger procedure, cease to exist.

Thus, according to Russian law, the registration of a new legal entity is a prerequisite for a merger transaction. For example, there are three companies A, B, and C. Company A completes a merger with companies B and C, which results in the creation of a new company, D, and the cancellation of the others. At the same time, management, assets and liabilities of A, B and C are fully transferred to the management of company D. Foreign practice implies that one of the merging economic objects continues its work. Such a process in the legislation of our country is called "accession" (A = A + B + C).

The legislative base of the Russian Federation clearly distinguishes between the conditions for the implementation of "merger" and "acquisition", and also has a third concept - "accession", which is not found in the laws of other countries.

A takeover differs from a merger in that, as a result of the first, one company buys out another, completely taking control over it into its own management. At the same time, the “eating” company acquires at least 30% authorized capital or a block of shares of the administrative and economic entity that goes under its control.

A merger is an association of two or more economic entities, as a result a new united economic unit is formed.

The merger of companies can occur according to one of the following principles:

The restructuring of economic entities occurs with their complete further liquidation as legal and tax forms. The newly formed company acquires all the assets and liabilities of the firms included in it.
Merging of assets - there is a partial transfer of the rights of the companies participating in the merger, as an investment contribution. At the same time, the participants retain their administrative and economic activities.

Any type of merger of companies is accompanied by the obligatory formation of a new legal entity.

How not to lose valuable employees during a merger or acquisition of companies?

Your competitors may find out about the upcoming merger or acquisition of the company and begin an aggressive hunt for the best employees. To retain valuable staff, follow the instructions from the editors of the magazine "CEO".

When joining, one of the restructured companies is the main one and remains as a legal entity after the conclusion of the transaction, the remaining participants are dissolved. The main company thus receives all the rights and obligations of the canceled firms.

Practical economics knows the following reasons for the merger of companies:

the desire of the owners of enterprises to enlarge the business;
reducing costs by increasing the volume of activities;
the desire to increase revenues through synergy;
change of coordination of activities by methods of diversification, while the goal is either to change the market space, or to expand the range of manufactured / sold products;
combining the potential of complementary resources of different companies;
subjective grounds of top managers of firms;
improvement of management technologies;
monopolization and acquisition of competitive advantages;
protection measures.

Often, a measure of merger is resorted to simultaneously for several reasons. The purpose of a merger is always to achieve greater financial results through joint management and increase the efficiency of firms involved in this process. The practical experience of merging companies in the Russian market has shown that this event provides an opportunity to join the progressive global economic system and acquiring additional priorities in a healthy competitive environment.

The companies participating in the reorganization set themselves basic goals company mergers:

market expansion;
improvement quality characteristics products;
cost reduction as a competitive advantage;
increase in the range of manufactured / sold products;
increasing awareness and emotional content of the brand;
product differentiation;
introduction of innovative technologies,
the acquisition of greater competitiveness in foreign economic relations;
increase in financial results from doing business;
escalation of passive income;
increasing investment potential;
increasing creditworthiness and investment attractiveness;
increase in working capital;
appreciation of own shares;
improvement of the profit system.

Merger of companies: pros and cons of the operation

Mergers and acquisitions of companies are attractive for their pluses:

high probability of obtaining a quick positive effect;
this measure is highly competitive;
the likelihood of obtaining control over significant intangible assets as soon as possible;
geographical expansion of business;
taking control of an already established organizational system;
instant acquisition of a market sector;
purchase is likely working capital previously underpriced.

Here are those minuses these events that are known to businessmen:

significant cash costs associated with the payment of penalties to former shareholders and employees of the canceled companies;
a “miss” is likely in assessing the benefits of the transaction;
when doing business in various industries, the process of merging companies is a complex and costly operation;
upon completion of the merger or takeover, there may be difficulties with the employees of the acquired company;
when restructuring foreign companies, there is a risk of national and cultural incompatibility.

Types of company mergers: grounds for classification

For today corporate governance distinguishes between different types of mergers and acquisitions.

The classification features of these procedures are:

type of business combination;
national and cultural specificity of restructured organizations;
the position of companies in terms of the integration deal;
method of connection of resources;
type of assets;
company connection technology.

To the extent that type of union carried out by this procedure, differentiate the types of mergers.

Horizontal merger - the integration of companies of the same type operating in the same area, or producing / selling a similar product, having the same technological and technical structure of the production process;
Vertical merger - the connection of diversified organizations that are in the same production system, that is, when the main company takes control of the previous stages of production closer to the source of the raw material, or further stages - to the consumer.
Generic association - productions working on an interconnected product merge. An example of such a merger would be when a mobile device manufacturer merges with a developer company. software or with a manufacturer of cell phone accessories.
A conglomerate association is a merger of diversified companies that do not have industrial, technological or competitive similarities. In this type of integration, the concept of main production disappears. Conglomerate mergers are of the following types:
A merger of companies with an increase in a number of assortments (product line extension mergers), i.e. when restructured companies produce non-competing products, but have the same distribution channels and a similar technological production cycle. An example of this type of event is the purchase by a manufacturer detergents Procter & Gamble of Clorox, which specialized in the production of bleach for washing.
Expansion-geographic merger of companies (market extension mergers), i.e., when additional territories for the sale of a product are acquired. An example is the purchase of hyper- and supermarkets in previously unserved areas.
A true (pure) conglomerate merger where there is no similarity.

By national and cultural specifics restructured companies distinguish between mergers:

national - the business entities being combined conduct their activities on the territory of one country;
transnational - there is a merger of companies from different countries (transnational merger) or the purchase of firms located in another country (cross-border acquisition).

Recently, as part of the trend of business scale, mergers and acquisitions of enterprises are practiced not only from different states, but also from multinational corporations.

Looking at what position of companies in the conditions integration deals, share:

friendly merger of companies - occurs when the management of the companies comes to a mutual decision that in the face of fierce competition, the merger will help build a more profitable business;
a hostile merger where the managers of the target firm do not want the deal. The purchase of the target company occurs through a tender offer on the stock market for the acquisition of a controlling stake.

According to various joining technique resources distinguish forms of merger of companies:

corporate alliances - a merger of companies, the task of which is to obtain a positive synergy effect in a particular business area, in other segments of the company's activities they work independently. To organize a corporate alliance, separate infrastructures or joint ventures are often created;
corporations - at this event, the pooling of resources takes place in full, in all areas of the companies' activities.

From what view assets are prioritized transactions, there are mergers:

mergers of production assets - imply the combination of the production potential of companies in the expectation of expanding the scale of production and reducing costs;
merger of financial assets is the pooling of the capital of companies in order to take a leading position in the stock market or to obtain additional profit from investment activities.

The process of integration of companies can take place in equal conditions (50/50). But as practice dictates, equal conditions always create additional barriers to achieving the intended heights and benefits. A merger can always end in a takeover.

What type of merger the restructuring companies will determine for themselves depends not only on mutual benefits, but also on the conditions of the market environment, as well as on the potential that each of their business entities has.

The global practice of mergers and acquisitions also has specifics depending on the country in which the organizations operate. A striking example of this is the trend towards mergers and acquisitions in America. large corporations. Conversely, in the European part of the world, target companies are most often firms organizing a small family business or small joint-stock companies of one sector of the market.

“Omni-channel commerce is what has become a trend now, and will be a necessity in the near future”: Kino Kwok on the merger of e-commerce and retail

Methods of merging companies in European practice and the practice of the Russian Federation

Mergers within Europe are governed by Directive No. 78/855/EEC of October 9, 1978, which defines two ways to merge:

the acquisition or takeover of the assets of small firms by a large company, in which the infrastructure of the participants in the merger is partially preserved;
organization of a new company by transferring to it a full package of rights and obligations of the firms that have joined it, in which the structure of each participant in the transaction is completely changed.

Merger of companies through takeover - a merger, the result of which is the transfer of all property and obligations of the company / companies to another economic unit without liquidation of the former on the terms of payment of dividends to the shareholders of the acquired company in cash or in the form of shares of the acquired company, but not more than 10%. At the same time, the organizations that were absorbed are dissolved.

Merger of companies through the establishment of a new company - an event that takes place according to European standards in such a form, when all the property and obligations of the company / companies are transferred to another economic unit without liquidation of the former on the terms of payment of dividends to the shareholders of the acquired company in cash or in the form of shares of the new company, but not more than 10%. At the same time, similarly to the first case, the organizations that were absorbed are disbanded.

The concept of "fusion" is sometimes used in the case of a merger of several organizations of the same type in terms of production characteristics.

Restructuring Russian companies in the form of mergers/acquisitions looks somewhat different.

The legislative framework of the Russian Federation, similar to European practice, considers the methods of "merger of companies through acquisition" and "merger of companies through the establishment of a new company" as procedures for the transformation of companies in the form of a merger and accession of legal entities.

Normative legal acts of the Civil Code of the Russian Federation also regulate the following measures of integration of companies:

formation on the basis of the existing legal entity of a subsidiary / dependent company;
organization of organizations in the form of unions or associations;
contractual relations between persons - participants in business legal relations (financial and industrial groups, a simple partnership agreement);
purchase of the organization's assets by another company;
acquisition of shares (shares) of a company (purchase of securities with payment in cash or purchase of securities with payment with other securities).

Organization of the merger: M&A agreement

The positive effect of the merger/acquisition transaction depends on the following factors:

determination of the optimal type organizational form mergers or acquisitions;
conducting the transaction in strict accordance with the antimonopoly policy of the state;
sufficient financial resource to complete the integration;
the fastest possible and mutual decision-making on the choice of the main participant in future relations;
instant connection to the operation of combining the staff of the highest and middle levels.

In the merger process, it is important to remember from the beginning of the process (idea) to its completion the essence of these measures is to obtain a positive effect by joint activities and, as a result, higher profits. When planning this type of restructuring, the most important tasks will be to establish the type of transaction, the ultimate goal and develop a strategy.

Throughout the synergy, it is important to see not only the positive impact of the merger, but also the mistakes made in the merger process. The guideline for the management of the newly created union should be not only obtaining a synergistic effect, but also maintaining it.

The merger/acquisition process can take place in the following ways:

Entity A acquires the assets of Entity B by paying in cash;
Entity A acquires the assets of Entity B by making payment in securities issued by Entity A;
entity A acts as a holding company, acquiring a controlling interest in entity B, which remains an active economic unit;
Entity A and Entity B exchange their shares;
the result of the merger of organizations A and B is the emergence of company C. Participants A and B proportionally exchange their securities for shares of company C.

Carrying out a transaction in strict accordance with the antimonopoly policy of the state is one of the conditions for obtaining a successful merger or acquisition.

Any state controls this species restructuring of companies at all its stages. The state authorities of the country in whose territory a merger or acquisition takes place have the right to suspend the transaction at any time if the actions of its process are contrary to antimonopoly policy. Russian entrepreneurs wishing to enlarge their business through a merger of companies, under certain conditions, are required to obtain the consent of the Federal Antimonopoly Service of Russia to complete this transaction (clause 8, part 1, article 23, part 1, article 27 of the Federal Law of July 26, 2006 No. 135- Federal Law "On Protection of Competition").

The merger/acquisition transaction is also controlled by the tax authorities. So, if the merging companies act as sellers of their securities, then it is their responsibility to pay tax on capital increases. The transaction is not subject to taxation if the old shares are exchanged for new ones.

If the transaction is recognized as taxable, then a mandatory event will be a review of the value of the assets of the affiliated company in order to identify profit or loss and calculate tax on them.

The tax status of this transaction also affects the amount of taxes that the company pays after the takeover. When a transaction is recognized as taxable, the assets of the affiliated company are revalued, and the resulting increase or decrease in their value is treated as profit or loss subject to tax.

The financial resource required to complete a merger or acquisition is calculated based on how the members of the association evaluate the synergy effect from this event. If future results are inflated, then most likely, many of the buyer's cash costs will be unjustified.

The decision to merge or take over should not be at odds with strategic goals participating companies.

The process of merging companies sets itself the solution of such important tasks as:

increase in volumes (association of one-industry enterprises);
territorial expansion;
reducing risks and acquiring additional competitive advantages (vertical merger);
increase in the range of manufactured / sold products, improving the manufacturability of the processes of the main activity, etc.

Registration of contractual relations and their specificity in the merger of limited liability companies.

This measure and its legal form is regulated by Art. 52 of the Federal Law "On Limited Liability Companies".

The lawyers of each party to the transaction develop merger agreements before the general meeting of the owners of the merging companies is scheduled. When all positions of the agreement are approved, the latter is signed by persons vested with the functions of the sole executive body of each party (general director, president, etc.).

According to paragraph 3 of Article 53 of the Federal Law "On Limited Liability Companies", the merger agreement should reflect:

stages and rules of the merger process:
date and time of appointment general meeting members of the merging companies;
stages and terms of notification of creditors;
the date and timing of the appointment of a joint meeting of participants in the companies with a full breakdown of the rights and obligations of each party to the agreement;
stages and terms of publication of the fact of the transaction in the media.
stages and conditions for the mutual exchange of shares of the integrating companies and the newly created LLC.

Those shares of the reorganized company that are part of another LLC - a participant in the merger, are automatically canceled.

It is important to remember that the authorized capital of an LLC during the reorganization is formed exclusively from the liabilities of the legal predecessor (authorized capital and other own funds). At the same time, when establishing a new LLC, only assets are taken to form the management company.

Any transfer of assets is regulated in accordance with the deed of transfer (clause 1, article 58 of the Civil Code of the Russian Federation, clause 5, article 52 of the Law "On Limited Liability Companies").

The authorized capital of the new LLC formed during the merger transaction includes:

the authorized capital of all LLCs - participants in the association;
other own funds reorganized LLC ( Extra capital, retained earnings, reserve capital, etc.).

This principle of formation of the authorized capital was developed for joint-stock companies, but in practice it is also applicable to LLC.

The authorized capital of an established LLC cannot be less than 10,000 rubles (paragraph 2, clause 1, article 14 of the Law "On Limited Liability Companies").

The merger agreement comes into force after it is signed by all parties at a joint meeting of participants in the reorganized companies, which is also reflected in this document in order to avoid possible misunderstandings.

When merging limited liability companies, the deed of transfer reflects the following provisions.

Conditions for the transfer of rights and obligations of reorganized LLCs to an established company, regarding all articles of accounts payable and receivables of the former (clause 1, article 59 of the Civil Code of the Russian Federation). If this item is not spelled out in the deed of transfer, then the tax authorities may refuse to establish a new LLC (paragraph 2, clause 2, article 59 of the Civil Code of the Russian Federation).
Deeds of transfer are drawn up by each company participating in the merger process. Thus, there will be as many deeds of transfer as there are parties to the merger/acquisition deal.

Practitioner tells

Andrey Voronin, owner of ATH Business Travel Solutions, Moscow

Twice I myself had to observe the merger of two companies, which is called "from the inside." Each time, I witnessed how, in this difficult time for the company, the aggressive attack of competitors is manifested in the active poaching of the best personnel of a vulnerable society to their staff. They are often guaranteed wage 30-50% above average. We had our own strategy to preserve the most valuable employees on our side.

Show everyone that you are one team. Teamwork significantly reduces the unfavorable situation in the staff: for this, the very first step will be the relocation of two companies to one office immediately after the signing of the documents on the merger of companies. In the case when it is not possible to immediately connect the teams, at least make sure that all the information disseminated is the same. Our experience was an example of such a situation: the branches of the merging companies were located in different cities‒ from St. Petersburg to Yuzhno-Sakhalinsk. An excellent solution for us was the holding of general meetings with their obligatory broadcast via Skype, so employees in all cities were aware of the decisions of the management team. To show that we are all one team, it is necessary not only for the team, but also for clients. So, for us, such an indicative event was a conference on Sakhalin, where we invited not only employees from the company merged with us, but also customers from the Far East. So everyone understood that territorial changes do not in the least affect the results of our work.

Insist that you are not merging one business into another, but are building a new one, taking the best from both companies. Thus, before the merger, our company could interact with the consumer in two ways: either the client received information directly in our office, or the service was remote. The merger with another company allowed us to apply their experience of other cooperation options.

Show employees career opportunities. The positive mood of the team increases significantly when you show them possible prospects business growth after the merger. An example of the positive impact of a merger and a great motivating impetus would be an increase in salaries or getting long-awaited positions for some employees.

Introduce people from both companies. Often, the teams of the merging companies are configured with mistrust and doubt about each other. The situation will be replaced by their speedy acquaintance in an informal setting. In this regard, we were lucky: the merger took place in December, and the New Year's corporate party fit perfectly into the team building program. The small room deliberately chosen for this played an excellent role: in cramped conditions, but not offended. In general, it was not to be bored. I also advise you to consider the pastime of employees in a playful way, when the principle of a set of commands is based on a sign that has nothing to do with belonging to one or another company. For example, bowling or paintball with teams formed according to the zodiac sign.

Once we spent charity event, during which employees bought hand-made crafts from each other. The idea of a good deed for the benefit of a talented child from low-income family brought the team together even more. All proceeds from this charity bazaar were put into a bank account for the boy's admission to a partner school in South Wales.

Instruct the HR director to hold face-to-face meetings with each employee. Individual conversations will help to positively set up the employee, find out his expectations and anxieties, as well as find out the general mood of the team. They give an understanding of which employees need additional motivation. Yes, this is a painstaking process, but a strong and cohesive team as a result is worth it. So, we had the first meetings with the staff held by me personally, and then the matter was entrusted to the HR director. The process of adaptation of employees in our company took almost five months.

An excellent solution for discussing individual proposals was the opportunity to anonymously ask questions to the governing body on an Internet resource for which a corporate website can be adapted. Participation in a cause that binds by common interest will also unite people. To do this, you can create separate project teams from workers who previously belonged to different teams.

In the matter of personnel, the most important thing is not to let things take their course.

Merger process: 7 steps

The process of merging companies in the classic version includes seven main stages.

Finding out the main tasks of the merger

The main goal of mergers and acquisitions is to achieve the highest results through joint activities and, as a result, increase the capital of the company and the income of business owners. Obtaining additional competitiveness can be achieved both by internal resources (improving the organization of management, introducing technological and technical innovations, increasing production capacity enterprises, etc.), and external (the processes of mergers and acquisitions of companies).

Identification of alternative ways to achieve the goals

It is important to determine whether it is possible to achieve the goal by other, less risky methods than mergers and acquisitions. These may include procedures for developing a new corporate marketing strategy, acquiring/building new fixed assets, increasing internal capacity, and other restructuring measures.

Identification of a target company, search for a candidate for a merger, purchase

The most accurate assessment of the capabilities of the selected company and the expected synergistic effect will be important.

Preparation for the transaction includes the following steps:

A study of the sphere of unification. The first step will be the analysis of the market sphere chosen for the merger or acquisition: assessment of the growth dynamics of its structure, the likely distribution of potential, the impact of foreign economic forces on it, the identification of opportunities in its structure associated with competitors, government authorities and scientific and technical research, analysis of the dynamics of demand and suggestions regarding the chosen structure. When evaluating a selected company, the first thing to do is examine its existing assets and liabilities.
Research of own possibilities. After the area of association is chosen, the company must conduct an objective self-assessment, determine its own potential, due to which the value of the acquired company is calculated. Based on the results of the analysis, the criteria for possible merger of candidate companies are determined.
The study of competing forces. A greater likelihood to feel all the advantages of a merger of companies and achieve a positive synergistic effect appears with a thorough study of the capabilities of competitors. By analyzing the actions of competing companies, it is easier to determine the future strategic direction and the long-term effect of intentions. Playing blindly, without guessing the opponent's next move, can only lead to a loss.

Having determined the industry of the target company, its capabilities and main characteristics, the moment of choice comes specific company among the vast mass of economic actors. Important criteria in the definition of a candidate will be: scope market activity, volumes of labor and income, territorial coverage of the market, private or public form of organization.

Options used in the practice of searching for a target company:

The use of established relationships in this market segment. Established contacts, especially within the same field of activity, often help to select a candidate for acquisition.
Appeal to agents involved in the sale of operating companies. Intermediaries can be both brokerage companies and investment banking structures. When choosing this path to find the right company, it is important to remember that the criteria passed to the intermediary may be a large number of firms, which complicates the selection process.

Analysis of the selected target company

All organizations selected according to the criteria must be carefully reviewed for future and present opportunities.

task this stage is to determine the most profitable party for a merger or acquisition. To do this, the objectives of the firm-buyer are compared with the characteristics of each selected company. Technological and technical resources, information about the infrastructure and capital of the company are taken into account.

Finding out the positive achievements that can be achieved through a merger or acquisition. The real idea of a possible synergistic effect largely determines the success of the company reorganization procedure. Careful attention is paid to the calculation of opportunities from the transformation of companies: consolidation production resources, distribution channels, expanding the geography of the market, reducing production and labor costs, technology exchange, etc.
Finding out the potential for value calculation by transforming the company. You can find out the potential of the proposed merger by comparing the target company with the leaders in this segment. Do not forget that the changes will have to go through not only the acquired company, but also the buyer himself. It is necessary to make realistic forecasts and, if possible, turn all changes in a favorable direction.
Valuation of the target company. When companies merge, the value of the target company is formed by the following characteristics: internal resources(payment cash flow in terms of a merger or acquisition) and external (average market prices, comparative assessment of such transactions). After determining the financial side of the issue, the decision is formulated in the primary agreement, which also contains an explanation of each stage of the merger or acquisition process. Further, actions are taken to complete this transaction (negotiations with state antimonopoly structures, intra-corporate preparation for merger, identification of sources of integration).
Checking the target company for reliability (due diligence). Information received from certain sources may influence the formation of the value of the company being bought, which will be reflected in the document of intent.

Approval of a resolution on a merger or acquisition. Development of an action plan

Implementation of all stages of the planned plan, taking into account the newly appeared changes

Mergers/acquisitions of companies is a delicate and complex process that is difficult to bring to a single model. Despite the considerable experience of the Russian and foreign markets in this method restructuring of companies, many organizations do not achieve the positive effect that is expected at the time of integration planning. The success of such transactions depends not only on how conscientious the approach to planning and distribution of responsibilities was, but also on the correct use of the opportunities opened up by the merger. The uncertainty that the process of merging different economic units brings with it can cause the loss of valuable personnel and significant customers, lead to unplanned expenses and lead to the loss of already won market positions.

Analysis of the result of the transaction

After a certain time, the result achieved by the merger or acquisition is analyzed, the goals achieved or not achieved by the integration are determined.

The specifics of the process of mergers and acquisitions.

Permission to make a transaction from the federal antimonopoly authority is required when:

the total book value of the assets of the acquirer and the issuing company (whom they buy) is more than 3 million rubles:
the total revenue of the reorganized organizations for the year preceding the transformation is more than 6 million rubles;
the acquiring company or issuer is included in the Register of economic entities with a market share of a certain product/service of more than 35%.

Analysis of the effectiveness of mergers and acquisitions of companies

There is an opinion that the merger of companies will be effective if you simply choose a company from a progressively developing market area and acquire it at a relatively low price. However, this judgment is erroneous.

The analysis of the effective completion of a merger or acquisition operation includes the study of many moments:

calculation of cash receipts and expenses, calculation of the financial result from the merger process;
determining not only the goals of the merger of companies, but also finding out the parties that are in plus and minus from the integration transaction;
formulation of problems that appeared with the implementation of the merger, in the field of personnel, tax collections, legal restrictions, accounting difficulties;
taking into account on what basis the merger was made: restructuring of companies on an unfriendly basis often carries a lot more contingency costs than a transaction on a voluntary basis.

Often, the beginning of the analysis of the effect of the integration of companies is the estimated financial achievements of the target company, which includes any increase in the money supply or reduction in costs. Further, the resulting discounted values are compared with the acquisition cost. The resulting positive difference from the predicted financial flow the target company and the value of the transaction is defined as the net benefit. In the case when the difference is negative, the decision on the merger of companies must be reconsidered.

For this comparative analysis you need to use the following data:

future capital increase of the target company in the future;
the value of the discount rate;
cost of capital to determine future cash flow;
the real value of the target company.

The disadvantage of this technique is that the information obtained does not always correspond to the real state of affairs.

The reason for this is that the determination of the price of the acquired company is subjective. The projected net benefit may be positive not because the merger has a positive effect on the business, but because the target company's real future capital increase is overstated. But if the forecast is too low, the failed restructuring of companies, which is really necessary and appropriate, will aggravate the existing business.

It is important before the transaction and its planning to determine for what reasons the cost of the merged companies will be greater than the price for each before the transaction, to calculate the economics of all benefits and costs.

The financial benefit (the same synergy effect) appears only when the value of the established company as a result of the merger exceeds the sum of the values of all parent companies before the transaction.

Analyzing the synergistic effect and determining its numerical value is one of the most difficult tasks in studying the results of a combination.

After the financial benefit of the future transaction, i.e. its synergy effect, is known, it is necessary to determine the estimated financial costs necessary to implement the merger plan.

If the condition for the purchase of the target company is the immediate calculation of its full value, then the costs will be determined as the difference between the money paid for it and the market price of the company being acquired.

Assuming that when the target company is acquired, its market value is paid immediately, then the cost of acquiring a company can be defined as the difference between the cash paid for it and the market value of the company.

Expenses in excess of market value companies are paid to shareholders of the acquired company or business owners in the form of bonuses. Often, the benefit received by the acquired company does not exceed the costs incurred by the acquiring company. This is due to the fact that the implementation of the transaction is always accompanied by payments to banks, payment for consulting, lawyers and, which fall on the shoulders of the acquirer.

The difference between all of the above benefits and costs is defined as net present value.

A positive value of this indicator indicates the expediency of a future transaction.

To assess the synergistic effect of the merger of joint-stock companies, it would be reasonable to take into account the behavior of investors in relation to the shares of the newly created company. For example, if the prices for the shares of the acquiring company fall after the publication of the fact of the upcoming transaction in the media, it can be judged that investors doubt the benefits of the future merger, or why they consider the value of the target company to be unreasonably high.

It should also be taken into account that the good company when selling, the demand for it increases, and the process of buying and selling is more like an auction “who will offer the most”. Taking the upper hand in such a struggle may entail unreasonable costs.

Reorganization of a legal entity: step by step instructions

What can a company merger lead to?

Such transformations of economic units, such as mergers or acquisitions, can affect the future affairs of companies in different ways, both by providing additional benefits and reducing the results of their economic activities. Numerous studies to determine the net synergistic effect on the experience of companies already restructured by this method show completely different results.

So, according to "Mergers & Acquisitions Journal", more than 60% of all integrations do not justify the finances invested in them. The Price Waterhouse audit network studied 300 mergers over the past decade and concluded that 57% of companies transformed by mergers or acquisitions perform worse than similar companies in the same field of activity. Often a bad merger experience forces companies to separate again in order to return to the indicators that were achieved in the course of independent management.

According to analysts, the negative effect of the merger may arise for the following reasons:

incorrect assessment of the opportunities of the industry or target company chosen for the merger;
an error in the calculation of the finances necessary for the implementation of the integration;
wrong steps towards a merger or acquisition.

An incorrect assessment of the assets and liabilities of the acquired company leads to a decrease in the synergistic effect.

For example, an example of a miscalculation might be an assumption of an underestimated level of costs associated with an increase in the production capacity of the acquired company or with the warranty obligations of a previously released defective product. In the case of a production merger by another acquiring company, an assessment is made of the impact that the acquired production has on environment. It is most likely that all expenses for the elimination of negative polluting effects will be the responsibility of the buyer.

Often, an error in the calculation of the finances necessary for the implementation of integration is an obstacle to achieving the planned result of a merger or acquisition.

The miscalculation in future costs can be quite significant. Thus, the projected price of Rover was 800 million pounds, and in the end it cost BMW 3.5 billion.

Wrong steps in the way of implementation of the merger of companies have caused the failure of many mergers.

Managerial and leading personnel are not always able to cope with the problems that have appeared after the merger of companies. individual character production, infrastructure and intra-corporate traditions, bookkeeping is often incompatible with similar areas of the integrated company.

The value of many organizations is directly affected by the quality of human resources, namely, the competence and degree of professionalism of all personnel - from top managers to ordinary workers.

Changes in the managerial staff change the criteria for assessing the work of personnel, planning career ladder employees, the policy of distribution of finances is changing. All this affects the psychological mood of the team and can change both relationships within the company and informal ties. The situation when previously the owner of the company, who has a stake in the business, becomes an employee of the merger, negatively affects the working mood of a significant part of the staff and may even lead to the loss of significant personnel. The situation can be saved only by complete satisfaction with the new position of the former owner and the teamwork of the entire team according to a specially developed plan.

An analysis of the experience of mergers and acquisitions of many companies states the fact that it is often advantageous not to buy a company, but to sell it.

The fact that the shareholders of the target companies receive the greatest benefits compared to the profits of the owners of the acquiring firm is explained by two reasons:

The acquiring company is often much larger than the target company. In this situation, when dividing the financial result of synergy, the owners of each company will get equal shares of income in monetary terms, but in percentage terms, the shares of the shareholders of the new company will be much less;
turning the process of buying and selling an organization into an auction causes that with each new buyer, the offers to the shareholders of the companies being bought get better and better. Thus, the owners of the target company "pull" a larger share of the profits from the upcoming merger. An increase in the value of a company put up for sale may also be the result of anti-raider techniques.

Modern economics sometimes regards a merger large companies(eg guilds) as a sub-optimization.

The meaning of this definition in the field of company restructuring is as follows. A strategy aimed at strengthening intra-corporate ties leads to the fact that purchase and sale transactions are made in “their own” circle. But this does not prevent “their” organizations from setting the most favorable cost for themselves.

The effect of such mergers is either an unreasonably high price for the product of the newly founded enterprise, or the standard discussion of the cost turns into long clarifications of mutual claims. As a result, complex relationships within large guilds make it difficult, and sometimes impossible, to form prices that will satisfy companies on opposite sides systems.

Reasons for combining even competing companies into business alliances

Practitioner tells

Vitaly Vavilov, Project Manager, Strategy Partners, Moscow

Virtually the only way to create value during a period of financial instability in a country is through a merger, acquisition, or alliance. These measures, firstly, reduce the value of assets, and secondly, they join forces to speed up during the crisis.

A good example of this is the American medical company LHC Group, which doubled its value in just six months of the crisis thanks to the merger. The outsourcing scheme of work made it possible to increase the structure of the LHC Group by 8 joint ventures in 6 months, attracting medical institutions as partners. Guaranteed customer traffic minimized a possible drop in demand, and the resulting financial gain made it possible to acquire two companies that significantly expand the scope of services. Thus, during the general crisis, the LHC Group was able not only to maintain its positions, but also found a way for itself to invest in progressive development.

Choosing your path different kind associations, the most important thing is to always see the final goal of each next step, which ultimately should result in the acquisition of additional benefits for each participant in the integration.

My personal observation is that vertical mergers are most successful. Here the main task will be to select a like-minded company with the greatest competitiveness (for example, implementing a well-recognized trademark or having another attractive offer) or one that operates in a dynamic emerging industry. The success stories of Hana Electronics (an Asian electronics manufacturer) and Alaska Milk (a Filipino dairy manufacturer) are a great example of just such a strategy.

The merger of companies is one of the most reasonable and financially effective reorganization schemes in conditions of instability or other force majeure circumstances (for example, the global financial crisis). This allows us not only to strengthen our positions in key markets, but also to avoid the dissipation of funds, unnecessary waste on the maintenance of the administrative apparatus.

In order to highlight the key blocks of the merger, they can be considered using the example of LLC (limited liability companies). Despite the fact that the case when one is formed from two companies through a merger reorganization is considered to be a classic, options are also possible with three (or more) “parent” companies, as well as there can be more than one newly formed legal entity.

The merger of limited liability companies must be carried out on a voluntary basis, by mutual agreement and initiative of the parties involved in the reorganization. As a result of a merger in the form of reorganization, a new limited liability company, being the direct "heir" of the rights and obligations of the companies participating in the reorganization, must be registered in the prescribed manner in the relevant state structures. The merged companies cease to exist as legal entities.

In some cases, the merger can be carried out only after the permission of a special public service(Antimonopoly Commission). This is necessary in cases (except for merging financial institutions), when: the total value of the assets of companies (or a group of persons) according to the balance sheet as of the last reporting date before filing an application is more than 3 billion rubles, or the total profit of these companies (or a group of persons) from the sale of goods or services for the last year (calendar ) amounts to more than 6 billion rubles. Also, the permission of the antimonopoly service is required if one of the companies participating in the merger has a market share of a particular product that is more than 35 percent.

The antimonopoly authority may decide to refuse registration of a limited liability company by merger, if this merger in the form of reorganization will lead to a certain decrease in competition in the relevant sector for the sale of goods/services, or will lead to strengthening of the leading positions of the legal entity (group of persons) that initiated the merger of companies .

If the companies with which it is planned to merge belong to the same group of persons, the transaction can be carried out without prior permission from the antimonopoly services, but with their indispensable notification within the appropriate timeframe (no later than 30 calendar days since registration). In accordance with Law 31 (part 1) "On Protection of Competition", the application must be submitted at least one calendar month before the conclusion of the transaction by one of the representatives of the group of owners of companies. The information must be accepted and also published on the relevant network resources.

If the total assets of the newly created company as a result of the merger, or its proceeds from the sale of goods or services exceeded the amount of 200 million rubles, it is necessary to submit a notification of its status to the antimonopoly services no later than 45 calendar days after the date of reorganization.

The merging procedure itself can be divided into conditional stages:

.Initial (preliminary) stage

Inventory of property, financial, debt and other obligations in accordance with Guidelines. The data obtained as a result of the inventory (credit and debt obligations, including those at the stage of litigation and pre-trial proceedings) form the basis of the transfer deed. This act does not require strict wording, and can be filed in free form(it is only obligatory to indicate the details of the legal entities participating in the reorganization). The deed of transfer is provided along with the registration documents of the new company.

Failure to submit the above act leads to refusal of registration of the company by state authorities.

At the same time, the charter of the company is being created, and a merger agreement is being developed. Everything regulations must correspond federal law About "On Limited Liability Companies".

.General meeting of the merger participants.

The meeting (or each meeting, if there are several) must unanimously adopt (if the decision is disputed by at least one participant in the meeting, it is considered incompetent):

1) The decision to reorganize the company through a merger of companies

2) The merger agreement, as well as the charter of the company being created.

3) Approval of all points of the transfer act.

It should be noted that any participant in the general meeting may, in accordance with the procedurally established procedure, put on the agenda the issue of the merger of organizations.

Also, if the charter of a newly formed company provides for the election of a board of directors (or supervisory board), its members are elected at the same meeting.

The decision to merge (reorganize) is the main document informing about the state of affairs in the financial statements of the "parent" companies. It is recommended that the decision reflect the timing, as well as the nature of the inventory (s), the method of assessing the property, as well as financial and other obligations. It is also necessary to include in it the procedure for succession, formation of the authorized and share capital, authorized and mutual funds(its size), the procedure for distributing the profits of the "parent" organizations for the reporting period and the time preceding it.

The transferred property can be valued in the following ways:

1) According to the residual value determined from the financial statements.

2)According to peer review, which determines the current market value of companies.

3) Another assessment (the actual calculation of the material and technical base and production reserves, the initial amount of financial injections, etc.)

Three notices should be sent at this stage:

1) The first of them - to the tax authority at the location of the organization. Each company participating in the merger is obliged to notify in writing about the reorganization to the tax authority at the place of registration no later than 3 days from the date of such a decision11. A notice of the reorganization of an organization is submitted to the tax authority in the form No. C-09-412, together with a copy of the decision on reorganization.

Wherein Tax office has the right to conduct an extraordinary inspection financial activities companies, regardless of the age of inspections of the reorganized "parent" companies.

2) The following notification is submitted to the registration authorities (also within three days from the date of the decision). This notice must be signed by all legal entities participating in the reorganization.

3) Finally, the third notice is sent to the creditors of the companies undergoing a merger. This notice (in writing) must be sent to all known creditors no later than 30 calendar days from the date of the decision, and also printed in printed edition"Messenger state registration". Lenders, on the other hand, have the right to demand the fulfillment of debt obligations, within the same 30 calendar days from the date of publication (at the same time, without interfering with the reorganization process), in the future, any claims are considered invalid

The final notice must contain the following information:

1) Information about legal entities that have retained or changed their status in the company being registered, as well as legal entities that are being created.

2) Form of reorganization.

3) The nature of the collection of obligations by creditors.

4) All other information provided by law.

.Conducting a joint general meeting of participants in the companies participating in the merger.

At this stage, the election executive bodies, which further carries out all actions related to the registration of the company in state institutions.

.State registration of a newly created legal entity.

For state registration of an established legal entity, it is necessary to provide a list of the following documents:

1) Application for registration of a legal entity, signed by the applicant and notarized in the form No. Р12001.

2) The charter of the created person (in the original, it is possible to provide a notarized copy).

3) Agreement on the reorganization (merger) of a person (in the original, it is possible to provide a notarized copy).

4) Decision on the fact of reorganization of a legal entity.

5) Deed of transfer.

6) A document confirming the payment of the state fee.

7) A document confirming the transfer of data to the local branch of the Pension Fund of the Russian Federation of information in accordance with the laws "On individual (personalized) accounting in the system of compulsory pension insurance" and "On additional insurance premiums for the funded part of labor pension and government support formation of pension savings”.

During the state registration of legal entities, the actual registration is carried out local authorities(in the event that the legal entities participating in the registration are located in the same place where the newly created company is registered). In other cases, the decision to appoint a registering body is made by the Government of the Russian Federation.

When registering a legal entity created on the basis of a merger (reorganization), the registration authority, on the basis of decisions on registration on the basis of a merger and decisions on the termination of the activities of the "parent" companies, enters the relevant information into the register, and also sends information about the merger / liquidation to the registration authorities at the place of registration, and copies of the relevant decisions (“registration file” is sent by registered mail, which contains a list of registration documents). In the future, the applicant is issued written confirmation of entering data into the registers.

From the moment of state registration, the merger is considered officially completed, and the newly formed company can begin its activities. Companies that have undergone reorganization by merger are considered to have terminated their activities.

A separate case worth noting is the merger of companies by joining one limited liability company to another. In this case, only one of the companies is considered to have terminated its activities, transferring all rights and obligations to the second, and at the stage of the general meeting, a decision is made to change (or maintain) the functions and executive composition of the board of directors, change (or maintain unchanged) the charter of the company, and as well as all other financial or other matters.

Thus, the process of merging limited liability companies is carried out in four stages, each of which requires a clear and scrupulous implementation of all regulations in the appropriate time frame.

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