TRANSFORMING A PRIVATE COMPANY [I.K.E.] INTO AN S.A. [A.E.]

STAGES OF TRANSFORMATION

The provisions of article 106 of Law 4072/2012 (as they have been recently amended at par. 2 by the respective par. 4 of article 11 of law 4155/2013) have been regulating in a singular way the transformation of an IKE into a company of any other sort. There are two stages to be distinguished:

a/ an I.K.E. is to be transformed into a different kind of company by way of decision of their partners. In particular there has to be a majority decision of two thirds (2/3) as to the total number of company shares of the IKE to be transformed, as per the provisions of par. 5 of article 72 of Law 4072/2012, and as per par. 1 of article106, in combination with par. 2 of article 68 same Law.

In terms of the same decision it is necessary to have all terms of the company’s statute therein included so as to have the transformation properly concluded. It is also necessary, in that same decision to have the agreement with the partner of the extra-capital contribution included, as provided for by article 106 par. 3 of Law 4072/2012.

b/ the second stage is about the transformation to be concluded by putting in place all the provisions applied in terms of the new company formation (in particular and in this case, the provisions with regards to the statute of an S.A.).

From the day of the decision’s registration including the new statute therein into the Hellenic Registry of Commerce [He.Re.Co.] the transformed I.KE.contitutes a new corporate formation. The registration of the transformed IKE into the He.Re.Co. takes place by virtue of the relevant He.Re.Co service competent for such a procedure. After such a transformation:

• The legal personality of the company remains intact
• The pending trials remain scheduled as planned without any annulment or postponement to be taking place whatsoever
• Any administrative permits already issued remain valid by way of transfer under the name of the just transformed company formation

Thus, in a nutshell, in terms of the procedure of the transformation, the IKE to be transformed does not get terminated nor dissolved; on the contrary, it is merely its legal formation that gets altered, while its legal personality remains intact

THE PROCEDURE OF TRANSFORMATION

If we were to form a schedule of the necessary actions to be taking place in order for the procedure of the transformation of an IKE into an SA to take place, the following have to be taken into consideration:

1. A decision reached by the General Assembly of the IKE partners with regards to such a transformation by way of majority of 2/3 of all capital shares (article 68 par. 2 case f’ of Law 4072/2012).
2. A Report issued by the Committee of article 17 of law 4548/2018, with regards to the evaluation of the transformed IKE’s assets and liabilities
3. The signing of the agreement with regards to the transformation of the IKE into an SA before a competent Notary which shall be including the transformation decision as such along with the entire statute of the newly established SA. This agreement shall be signed by all IKE partners, or by all those partners that have reached such a decision within the framework of the general assembly meeting that had just taken place (a meeting which the partners had attended themselves or by way of proxies and representing lawyers).
4. The Notary acting in his/ her capacity as One-Stop-Shop Service shall look into all necessary actions in order for the registration of the agreement transforming the IKE into an SA via the relevant He.Re.Co platform and procedure
5. The competent He.Re.Co service shall be registering the transformation agreement and shall be forwarding it to the relevant Prefecture service in order to run a due diligence check and issue the relevant approval decision
6. The relevant He.Re.Co. Service shall be looking into the matter of registration of the transformed IKE and the uploading of the relevant announcement in the website of He.Re.Co.