Redemption of Own Shares Acquired in a Downstream Merger

The downstream merger of companies belonging to the same capital group is becoming an increasingly popular method of the restructuring of capital groups and an important element of every M&A (Mergers and Acquisitions) transaction structured as a leveraged buyout. The downstream structure is highly valued by business people especially because it offers the possibility of modifying the group corporate structure without the necessity of modifying the company pursuing day-to-day business activity. The authors conclude that, unfortunately, the Polish Code of Commercial Companies does not adequately provide for business transactions of this sort. Apart from the general possibility of downstream merger of two limited liabilities companies, an issue which is quite well described in Polish legal doctrine, the article considers many other practical legal issues connected with such mergers. In particular, the authors give careful consideration to the procedure of redemption of own shares acquired by a joint-stock company as a result of a merger with its sole shareholder, arriving at the conclusion that the most effective method of such redemption is providing in the articles of association of the acquiring joint-stock company for redemption of own shares upon the occurrence of a specific event in accordance with article 359 § 6 of the Polish Code of Commercial Companies. The article discusses not only the relevant code provisions, but also the practical legal aspects raised by the Accountancy Act which must be taken into consideration in a downstream merger procedure, especially insofar as it regulates settlement for the redemption of own shares.

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