Restructuring of companies a proposal for pre-insolvency restructuring proceedings Dr. Andrea Braun
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1 Restructuring of companies a proposal for pre-insolvency Dr. Andrea Braun Institut für Interdisziplinäre Restrukturierung e.v. Pre-insolvency Restructuring Europe calling, Berlin busy? 21 May 2015
2 Overview of the Phase 1: Opening of and first steps Phase 2: Restructuring plan and voting process Phase 3: Court approval Prerequisites for opening of Legal consequences Potential content of plan Classes Necessary majorities Prerequisites for approval Minority rights 2
3 Phase 1: Opening of and first steps Company s decision to apply for application Court opens Legal prerequisites opinion issued by business professional with sufficient experience in the of companies reasonable chance of success of 3
4 Phase 1: Opening of and first steps Company s decision to apply for application Court opens Legal consequences Appointment of custodian Moratorium (optional) 4
5 Phase 1: Opening of and first steps Company s decision to apply for application Court opens Legal consequences appointment of custodian moratorium (optional) moratorium optional affects all existing creditors, irrespective of whether their rights are infringed by the plan stay of enforcement opening of cannot trigger event of default-clause 5
6 Phase 2: Restructuring plan and voting process Potential content of plan: rights of secured and unsecured creditors can be affected shareholders rights cannot be modified by the plan; corporate measures must be implemented pursuant to applicable corporate law Effects of the plan may be limited to certain groups of creditors 6
7 Phase 2: Restructuring plan and voting process Classes creditors vote on the plan in classes according to creditors rights and interests voting process in each class, 75% majority in value of creditors present and voting no additional majority in number no class cram-down 7
8 Phase 3: Court approval Court approves the plan if it meets all formal and material conditions Restructuring plan is binding upon the approval of the court. Material conditions/minority rights: Creditors are probably not placed at a disadvantage compared to the most likely alternative scenario The court s judgment cannot be appealed 8
9 Dr. Andrea Braun Die vorinsolvenzliche Sanierung von Unternehmen Ein Vorschlag für ein neues Restrukturierungsverfahren unter Berücksichtigung der englischen Arrangements Schriften zur Restrukturierung, Band 8 Baden-Baden,
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