Bankruptcy Law

Once a decision has been taken to transfer the business, the legal representative carries out the duties assigned to the liquidator under the laws governing court-supervised liquidation, which also apply to receivership , and the receiver remains in office to take all the necessary steps to complete the disposal . The receiver informs the court registry of the essential characteristics of the busi …

Content of the takeover offer

Once a decision has been taken to transfer the business, the legal representative carries out the duties assigned to the liquidator under the laws governing court-supervised liquidation, which also apply to receivership , and the receiver remains in office to take all the necessary steps to complete the disposal . The receiver informs the court registry of the essential characteristics of the business or branch(es) of business likely to be transferred .

The disposal may be total, which means that it includes all the assets necessary for the continuation of the debtor's business , but only those assets, to the exclusion of the personal assets of the individuals who are partners in the SNC . If the assets that make up the business are no longer part of the debtor's assets, having been sold to a third party before the insolvency procedure was opened, the plan cannot be approved . In addition, the court must be careful not to yield to pressure from purchasers seeking guarantees: it commits an abuse of power if, in response to an offer to sell all the assets of a company subject to a condition precedent requiring its managers to enter into a non-competition clause with respect to the purchaser, it imposes such a commitment on the managers .

The disposal may also be only partial. In this case, it relates to a set of operating items that form one or more complete and autonomous branches of activity , even if they represent only a fraction of the company's assets  and do not allow creditors to be paid in full .

The offer must be in writing and contain the information listed in Article L. 642-2, II and III of the Commercial Code . In particular, it must indicate the precise description of the assets, rights and contracts that it includes, mention business and financing forecasts, the price offered, the terms of payment, and the status of the capital providers and, where applicable, their guarantors. If the offer is based on recourse to borrowing, it must specify the terms and conditions, in particular the duration. The offer must also include the date on which the sale is to be completed, the level and prospects of employment justified by the activity in question, the guarantees subscribed to in order to ensure its performance, forecasts of asset sales over the two years following the sale, the duration of each of the commitments made by the offeror and the methods of financing the financial guarantees envisaged when they are required under Articles L. 516-1 and L. 516-2 of the Environmental Code. Where the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the offer must also include an indication of the transferee's professional classification.

C. com. L. 631-22: “[...] The provisions of Section 1 of Chapter II of Title IV, with the exception of I of article L. 642-2, and article L. 642-22 shall apply to [the] transfer [...]”.

CA Chambéry, 10 May 2022, LawLex202300005033JBJ, holding that, if the receiver remains in office until the sale deed is signed, he is entitled to request that the plan be terminated.

Applicable to the receivership procedure on reference from art. L. 631-22 C. com.

Cass. com., 11 June 1996, LawLex202200010096JBJ (RJ).

Cass. com., 3 March 1992, LawLex202200009998JBJ (RJ).

Cass. com., 2 February 1993, LawLex202200010095JBJ (RJ).

Cass. com., 17 March 1998, LawLex200200001156JBJ (RJ).

C. com. L. 642-1, para. 2, applicable to the receivership procedure on reference from art. L. 631-22 C. com.

Cass. com., 2 February 1993, LawLex202200010086JBJ (RJ).

Cass. com. 26 June 1990, LawLex202200010068JBJ (RJ).

Bankruptcy Law

593. Content of the takeover offer

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Les notions juridiques connexes

593. Content of the takeover offer

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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