SLOVENIA Law and Practice Contributed by: Markus Bruckmüller, Klemen Radosavljević and Matej Kraner, Wolf Theiss Attorneys-at-law
According to case law, the assumption of a liabil- ity that would conflict with the capital mainte- nance rules is not always void, but the share- holder must then repay the benefit received. A guarantee would only be null and void vis-à-vis the creditor if the creditor did not act in good faith, ie, if the creditor knew or should have known that the guarantee was inconsistent with the capital maintenance rules (in the case of a bank, its good faith is presumed). The provision of an upstream or downstream guarantee or security by the Slovenian company is not permitted if it can be reasonably expected that its enforcement would affect the liquidity of the Slovenian company and lead to its insol- vency, even if the Slovenian company receives adequate consideration for such guarantee or security. 5.5 Financial Assistance Under Article 248 of the Slovenian Companies Act, a joint-stock company is strictly prohibited from providing financial assistance for the acqui- sition of its own shares, except in cases express- ly permitted by the Slovenian Companies Act (ie, in the case of day-to-day legal transactions of financial organisations and transactions in which shares are acquired by employees of the company or a company affiliated with it, under the conditions of the applicable legislation). The prohibition of financial assistance must be inter- preted broadly and includes legal transactions with similar effects, including granting of col- lateral provided by a company for a loan to be granted by a third party to an existing or future shareholder for the purchase of the company’s shares. The Slovenian Companies Act does not provide any specific provisions regarding financial assis- tance for limited liability companies. Instead,
financial assistance for limited liability compa- nies in the broader sense is assessed under the capital maintenance rules applicable to limited liability companies (see 5.4 Restrictions on Upstream Security ). 5.6 Other Restrictions Article 36(2) of the Slovenian Takeover Act ( Zakon o prevzemih (ZPre-1)) stipulates a restriction for the financing of a takeover bid. The approval of the publication of a takeover bid by the Slove- nian Securities Market Agency ( Agencija za trg vrednostnih papirjev ) is subject to the acquirer proving to the satisfaction of the Agency that (i) as consideration for the securities to which the bid relates, it has not in any way, directly or indirectly, pledged or undertaken to pledge or encumber any securities of the target com- pany which are not owned by the acquirer; and (ii) as consideration for the securities of the tar- get company, it has not in any way, directly or indirectly, pledged or undertaken to pledge or encumber any assets of the target company. If, after an acquisition, the acquiring company intends to merge with the acquired company (or vice versa) and any of the merging companies holds more than 25% of the shares of any other merging company and has given or promised to pledge these shares in the target company as security for a financing used for the acquisition of such shares, the following is required for the validity of the merger: • approval of the majority of creditors of each of the merging companies (majority approval) – deemed to be given when the consent is given by creditors whose total claims account for at least 75% of the total liabilities of the company, as evident from the balance sheet as per the cut-off date of the merger;
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