Bankruptcy Proceedings

In this reorganization procedure, which was initiated in 2015 and did not involve any self-administration, claims amounting to around EUR 64 million were registered. This figure comes as no surprise, as this holding company is the "head" of the Asamer Group. After the bankcruptcy trustee conducted an active process, which was completed in the sense of QuadraCir, the creditors were satisfied with a quota of 22%.

In 2015, a restructuring procedure was opened without self-administration, claims amounting to almost EUR 10 million were registered. A suitable buyer was found for the company, which not only satisfied the creditors with a quota of 85.5%, but also made it possible to continue the company at the same location while retaining all employees.

The opening of these bankruptcy proceedings in 2012 hit many beer enthusiasts hard. But even here a new buyer for the company could be found within the scope of a reorganization procedure without self-administration. Approximately EUR 1.9 million in outstanding claims had been registered, with creditors being satisfied with a quota of 13.1%.

In the course of these bankruptcy proceedings, above all a question arose which up to this point had not yet been answered clearly in jurisprudence: What effects does a subsequent outbid have after the holding of a voluntary offer for sale and after the court has already approved the purchase contract?

The Higher Regional Court (OLG) of Linz had to deal with this question in its decision of July 8, 2015 on 2 R 107/15s and 2 R 108/15p (published in ZIK 2015/312, 233; see in addition also the discussion essay by Mayrhuber, On the significantly higher "overbid" after court approval of a sales contract, ZIK 2015/273, 208; as well as the discussion by Übertsroider, Aktuelle Rechtsprechung - OLG-Sprengel Linz, Jahrbuch Insolvenzrecht und Sanierungsrecht 2016, 129 (134 ff)). The decision of the OLG Linz was based on the following facts:

In the course of a liquidation procedure, the bankruptcy trustee made a freehand offer, i.e. a sale of the company or parts of the company through a bidding procedure. Although there were several interested parties in the present case, the bankruptcy trustee decided to discontinue the freehand offer because the offers were significantly below the estimated market value. Subsequently, two bids from the original group of bidders were received by the bankruptcy trustee. Both bids were subject to the condition that no further bidding procedure would be conducted. Both bids were therefore "best and final". The bankruptcy trustee concluded the purchase contract with the better bidder (price difference 30%) with the consent of the debtor, referred the sale to the creditors' committee and obtained court approval. This purchase price was already above the estimated market value. Only then did the unsuccessful bidder report and submit another offer which exceeded the purchase price by 25%.

In the present case, the Higher Regional Court of Linz came to the conclusion that subsequent outbids must generally be countered with caution. This is because legal certainty is also desirable in the case of voluntary offers for sale. In addition, the effectiveness of voluntary filing would be endangered if such a practice was allowed. However, an overbid, which exceeds the original purchase price by 25%, cannot be disregarded in the opinion of the Higher Regional Court of Linz, which is why the judicial approval of the original purchase agreement had to be revoked and the overbid had to be dealt with. In the opinion of the Linz Higher Regional Court, this overbid not only protects the interests of the creditors in the best possible way, but also those of the debtor. The Linz Higher Regional Court also stated that the bankruptcy trustee was forced to conclude the original purchase contract, as otherwise the subsequent outbid would not have occurred at all. This was the only reason why such revenue could be achieved, which led to a quota of over 80%.