Osborne Clarke advised on the arrangement with creditors of The Organic Factory S.p.A. in liquidation, a company incorporated in 2014 and having as its object the activity of oilseed pressing and the wholesale and retail trade of all products deriving from it. The arrangement was approved by the Court on 29 December 2021, with a plan drafted by the company with the support of the financial advisor Proactiva, with a team consisting of Partner Gianluca Beffa and Manager Giovanni Migliorati.
Osborne Clarke's team led by partner Filippo Canepa with senior lawyer Valentina Incorvaia, managed the legal aspects of the procedure, assisting the company in drafting the plan and the proposed arrangement and in its relations with the Court and the creditors.
Alessandro Solidoro attested the truth of the company information and the feasibility of the plan.
The arrangement is based on the transfer of the going concern - which was completed, following a competitive procedure pursuant to article 163-bis of the Insolvency Law, prior to the court's approval of the arrangement - and on the indirect continuation of the business, while the proposal for the composition with creditors provides for (i) the division of creditors into classes, (ii) the partial payment to preferential creditors, pursuant to art. 160, paragraph II of the Insolvency Law, and (iii) the formulation of a proposal pursuant to art. 182-ter of the Insolvency Law to the Treasury and to the social security institutions.
In approving the arrangement, the Court of Milan, distancing itself in part from the current trend of the Italian Supreme Court and, accepting the arguments presented by the company, stated that if the continuation of the business is made possible thanks to substantial investments by the third party purchaser, the cashflows generated by the management of the business by the new owner, necessary to pay the price of the business, must be considered as "external finance", and as assets additional to those existing at the date of filing the application pursuant to art. 161, paragraph VI, of the Insolvency Law and that, as such, the same can be used freely by the debtor.