Early crisis recognition and new preventive restructuring framework. What does it take, what does it bring, and how can it be used to your advantage?
As of January 2021, managing directors, shareholders and stakeholders are now dealing with a new set of applicable laws and a new instrument for preventive restructuring (known collectively under the abbreviation “StaRUG”). And those who examine it in detail will recognise that it offers additional restructuring options for an effective turnaround.
Management’s responsibility for implementing an early crisis detection system is made clear in a specific discussion. Management and supervisory boards are fundamentally responsible for determining whether and to what extent existing early crisis detection processes are effective for identifying insolvency risks arising over a (considerable) 24-month forecasting period. For this is a statutory requirement.
Management is obliged:
A new and interesting toolset is now in use in Germany in restructuring practice to avert insolvency. This preventive restructuring framework is a legally regulated set of instruments which for the first time enables restructuring counter to the will of individual creditors, even outside of insolvency proceedings.
The following five questions first have to be answered in the affirmative for this new option to be viably usable.
If these questions are answered in the affirmative, very interesting solutions are possible with StaRUG which were previously unavailable, including particularly the possibility of overruling creditor minorities (“accord disruptors” especially) and obstructive creditor groups.
To obtain the support of a majority of creditors nonetheless required, a comprehensive, transparent and resilient turnaround plan is still required, as a majority of creditors have to be convinced that restructuring makes sense and has prospects for success. Successful execution of the restructuring project, with or without the StaRUG options, is made possible by seeking unbiased, holistic advice at an early stage.
1. The determination of a risk of illiquidity within the next 24 months (on the basis of substantiated liquidity planning) as a prerequisite for being able to apply the StaRUG at all.
2. The holistic development of measures to eliminate the imminent insolvency sustainably and to restore the company’s ability to continue as a going concern – so that a value-oriented turnaround concept remains the core of this restructuring plan, too.
3. The implementation of the intended restructuring within the framework of the StaRUG requires well-judged elaboration of the restructuring plan, as this plan is an essential part of the restructuring framework. In addition to the preparation and documentation of a convincing turnaround concept, the following points must be carefully prepared:
In principle, almost all “justified”, i.e. already existing claims, can be structured (although intervention in employee claims, among others, are excluded), but not future claims – so that a termination of disadvantageous contractual relationships is excluded. The claims to be structured must be brought in line with a holistic concept and divided into suitable groups – this is particularly important when it comes to the “overruling” of potential piecework disruptions by dissenting creditors.
The settlement calculation serves the purpose of ensuring the maximum possible satisfaction of the affected plan creditors. The prospects of satisfaction are to be compared with the next best alternative scenario, whereby the continuation of the company is to be assumed in principle.
Interim conclusion: The StaRUG fills a gap in pre-insolvency restructuring practice in Germany and makes it possible for companies to restructure even against the will of individual “smaller” creditors without having to open formal insolvency proceedings. Although a purely financial restructuring is conceivable in principle, a holistic, comprehensible and robust turnaround concept will continue to form the basis of successful restructuring in most cases.
Crises must be identified early on so suitable countermeasures can be proactively taken to successfully emerge and move on. An early warning crisis radar is to be implemented to systematically monitor potential insolvency risks as an active step for optimally ensuring viability over the long term. Such a system reduces managing director liability and protects the company against going-concern risks on a sustained basis. What are the requirements such early warning systems have to meet?
An early warning system has to ensure that indications of a crisis involving stakeholders, strategy, products/sales, earnings and/or liquidity are promptly identifiable so as to allow assessment of the connected risks. It has to allow focusing on key metrics specific to the company and charting developments within a management information system. Evaluation is conducted via fully integrated, rolling 24-month corporate forecasting (P&L, balance sheet, cash flow) and on liquidity projections based thereupon. Risks must be adequately taken into account in such forecasting, ideally by way of scenario running (best, base and stress cases).
Potential signs of an emerging stakeholder crisis
Indications of disruptive changes in the market and competitive environment
The quality of the early crisis detection system and the restructuring measures derived from it, embedded in a viable turnaround concept, is a key factor for successful crisis management. And thus also for the future viability of the company. By implication, this also means that the level of competence of the restructuring consultant is critical for the success of the operation.
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