Entrepreneur “In some cases, a business manager can participate in the transfer plan”

“In some cases, a business manager can participate in the transfer plan”

Can an entrepreneur take over his business in the event of receivership?

According to article L642-3 of the Commercial Code, this is prohibited: “The de jure or de facto managers of the legal person in judicial liquidation, […] are not admitted directly or through an intermediary, to submit an offer. » Debtors, relatives or allies up to the second degree and controllers cannot respond to a call for tenders and cannot acquire part or all of the property sold for five years. The entrepreneur cannot avoid the payment of his debts. It is rare that the manager remains after a receivership: in general, he loses the property of the company and the invested capital.

This prohibition is partly lifted in the case of an agricultural operation. For other cases, the prosecutor can ask the commercial court to examine a takeover plan in which the manager of the failing company participates. Only when the circumstances are considered important enough to override the prohibition of public order. This derogation intervenes to promote a recovery when there are social issues in particular. The entrepreneur’s proposal will then be examined like other assignment offers.

What do you need to file a receivership case?

For the offer to be received by the judicial administrator, several elements must be mentioned, set out in article L642-2 of the Commercial Code. It is necessary to specify the identity of the candidate, his motivation for the transfer, the scope of the resumption of activity, the price of the offer, its financing and the origin of the capital provided, the safeguarding of jobs, the date completion of the sale, or the duration of each of the buyer’s commitments and the guarantees to complete the takeover proposal.

How does the procedure take place ?

A first judgment opens an observation period during which the judicial administrator observes the company’s ability to repay its debts. It can be extended for up to 18 months.

In the absence of the possibility for the company placed in receivership to present its plan for the repayment of its liabilities, the receiver organizes a call for tenders for the sale. This stage lasts between three weeks and one month on average. A company presentation file is made available to prospective buyers, who sign a confidentiality agreement.

The administrators cannot reject takeover bids, even if they are filed outside the set deadlines, the court having the option of reopening the call for bids. As a judicial administrator, I am committed to ensuring that there is equal treatment between those who wish to take over the company. Once the call for tenders is closed, it is necessary to wait at least 15 days before the judgement. There, the commercial court decides behind closed doors to designate the acquiring company, by consulting the opinions of actors linked to the failing company.

If the entrepreneur presents a recovery plan and the court validates it, then the company regains its autonomy and must make a payment to the creditors every year under the control of the agent or the judicial administrator in charge of the case. .

Is a takeover offer more valuable than a recovery plan?

Indeed, competition may exist between a transfer plan presented by an outside company and a recovery plan proposed by the entrepreneur at the head of the company. The solution proposed by the manager of the failing company is often favored so that it can sort itself out: between two offers deemed equivalent, priority is given to the company.

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