Acquisition of an enterprise in the narrower sense
(“Asset Deal”)
Acquisition of enterprises/parts of enterprises by purchase, exchange, gift by succession.
The transfer of the enterprise (i.e. all the assets belonging to it) is not possible in one act (succession, in contrast to this universal succession, e.g. when acquiring an enterprise by conversion to another form, 3. below); it consists of several acts of transfer.
Assets belonging to the enterprise must therefore be transferred individually in accordance with the respective requirements of property law, for example:
- equitable interest in real property: declaration of conveyance by the alienator, transfer of title is made by entry in the land register;
- receivables: by assignment;
- liabilities: assumption of indebtedness
- incorporeal rights: e.g. entry in public registers;
-
position of the alienator as a party to contracts: taking over of
the contracts (consent of all parties to the contracts is
required!).
In certain cases (if no contractual stipulation to the contrary exists) the law provides for an “automatic transition” of the position as a party to contracts from the alienator to the acquirer, e.g. for:- service contracts (Section 3 AVRAG [Austrian contractual labour law adjustment act),
- tenancy agreements (alienator as landlord: Section 2 para. 1 MRG [Austrian tenancy law act], Section 1120 ABGB [Austrian civil code], Section 1095 ABGB)
- tenancy agreements (alienator as tenant : Section 12a MRG)
- trademark rights and trademark licence agreements (Section 11 MarkSchG [Austrian trademark protection act])
- insurance agreements concerning property insurance (Section 69 VersVG [Austrian insurance agreement act])
When enterprises and operations are acquired/alienated, the consent of the supervisory board may be necessary (Section 95 para. 5 no. 1 AktG [Austrian companies act], Section 30j para. 5 no. 1 AktG). If the entire assets are alienated by a public limited company, the consent of the general meeting (Section 237 AktG) with a ¾ majority is required. For private limited companies: a unanimous resolution of the general meeting is required if the entire enterprise or important parts thereof are alienated.
