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Trustees: Merger regulation coming

The managing agents are criticized for charging payments that should in principle be included in the package paid the owners.

Mr. Hervé NOVELLI, Secretary of State for Industry and Consumer Affairs, said as part of Audience consumption held October 26, 2009, he heard, before end of the first quarter of 2010, by order, fix the list of benefits covered by the plan trustees paid by the owners.

Yann Gallon - Lawyer

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and franchise renewal

The Court of Cassation considered that the franchise agreement, concluded in consideration of the person of the franchisor can not, except with the franchisee, be transmitted by the effect of a partial contribution of assets placed under the division.

Cass.com. November 24, 2009, FD, No. 08-16428

A company can be created with a merger a new legal entity, a merger, division, operations which involve transfer of all assets of the merged companies to the new corporation, or assets of the company being acquired or acquiring company to split (C. com., art. L. 236-3).

Article L. 236-22 of the Commercial Code also submit the partial contribution of assets to the system of divisions, the effect of transfer of assets and then having to be accommodated within the given industry.

The acquiring company or the company resulting from the merger event of a merger with creation of a new corporation is substituted, actively and passively, as universal rights and obligations of companies being acquired or merged.

Contracts intuitu personae are however subject to a special regime for transmission and require the agreement of the other party to such transmission.

A contract is entered into a personal basis in consideration of the person of the other party, that is those that we do not sign with anyone.

It is not easy to characterize the existence of a personal basis.

The contracts are free in principle, concluded a personal basis. Similarly, the contract term.

The sales contract is itself likely to be concluded with any person.

The parties to a contract may expressly state that it is also concluded a personal basis.

The Supreme Court said that the franchise agreement is a contract a personal basis.

To prevent mergers or partial contributions of assets are doomed to failure because of the intuitus personae, it is necessary to anticipate the consent of the franchise, by a contractual provision allowing well in advance to ensure the transferability of contracts.

Yann Gallon - Lawyer

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trial period = danger!

Renewing the trial period is possible only once if an industry-wide and the letter of appointment or employment contract expressly provided.

The employee's agreement on a renewal of the probationary period is required and must be express and unequivocal.

In a decision dated November 25, 2009, the Social Chamber of the Court of Cassation stated that the mere appearance of the employee's signature on a document prepared the employer does not signify agreement. The manifestation of clear and unequivocal commitment of the employee could "only be inferred from his signature on a document prepared by the employer."

Although in the past, the handwritten signature of the employee before his "Good for express consent to the renewal of the trial" has been accepted by the courts as an expression of character and unequivocally express renewal (Soc. 11 October 2000 No. 98-45170), I think, for my part, it is prudent for employers to formalize the renewal, not a single letter on which the employee would sign it and that wording but by an amendment to the employment contract, characterized only legal in my opinion the agreement of both parties.

Hervé ROCHE
Lawyer

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The impact of economic and financial crisis on the LBO Case

The buyout by the establishment of an assembly based on LBO leverage legal, financial leverage and tax leverage.

It is now commonly used and essential for any potential buyer as it has since its inception, to prove himself.

The LBO market has developed tremendously in recent years, based on the idea that debt is a means of enrichment.

This arrangement seems to date the only reasonable alternative buyout and will soon be exploited by mass when a large number of companies will change hands.

Although it is well known, mounting LBO is not without risk and requires careful consideration in advance of a legal perspective, financial and tax on behalf of legal certainty.

Indeed, although it is commonly used for several years, this requires advance and caution.

Thus, if risks are unacceptable, others may be taken knowingly. We must therefore proscribe montages too "artificial" that will inevitably attract the suspicion of the Administration.

Besides the best possible optimization of the three levers on which the assembly, it is possible to increase the chances of success by adding other components. Employee savings, employee ownership, careful selection of the target, management involved and interested, are all important aspects.

This optimization effort becomes even more critical today with the financial crisis became economic crisis which has seriously undermined the market for LBO.

The trading volume in 2008 has seen a decline of 70% globally and 52% nationally.

contractual and structural solutions exist against the difficulties encountered by existing LBO.

Facing the main risk of not being able to honor the acquisition debt should be renegotiated the terms of the original agreements, mezzanine and senior debt or the "package management".

The decrease in leverage by providing capital or the search for internal and external liquidity should also be encouraged.

Therefore, if the mounting LBO seems shaken by the financial crisis, it is not necessarily doomed.

The multiple options available to him when he is in danger will remain the inescapable mounting buyout.

Stéphane BERRUCAZ - Lawyer and Pauline BARTHELET - Lawyer