Distressed M&A — opportunities and risks

According to the insolvency statistics of the Federal Statistical Office, the number of corporate insolvencies has risen dramatically since the beginning of 2009: In May 2009 alone, there were 14.9 % more corporate insolvencies than in May 2008. In the wake of the financial crisis, traditional companies such as Märklin, Rosenthal, Schiesser and Arcandor are also affected by insolvency.

However, insolvency does not necessarily lead to the breakup of the company. In numerous cases, at least individual business units of the insolvent company can be restructured. In most cases, a so-called transferring reorganization - also known as an "in-court sale" - takes place, in which the assets and legal relationships that make up the company's business operations are transferred to strategists (e.g. competitors) or financial investors.

The acquisition of an insolvent company or a business unit is generally carried out by way of an asset deal, as the acquirer wishes to acquire only the assets, while the liabilities are to remain in the insolvency estate. As a rule, the purchaser is only prepared to assume obligations arising from contractual relationships that are essential for the continuation of the business, in particular from long-term supply, employment, license and rental agreements. The insolvent previous entity is subsequently liquidated. A share deal plays a subordinate role in the acquisition of a company out of insolvency: it is only chosen if the acquirer attaches particular importance to the acquisition of assets which the insolvent company owner cannot transfer individually, such as goodwill. - The following article highlights the opportunities and pitfalls that the acquirer should definitely consider when acquiring a company out of insolvency. The subject of this article is only the acquisition of a company after the opening of insolvency proceedings.