Expert Advice in Crisis Situations

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1 Restructuring

2 Expert Advice in Crisis Situations Heuking Kühn Lüer Wojtek is a large independent German law firm. National and international clients trust in the competence and experience of our more than 300 attorneys, tax consultants and notaries. We represent the interests of medium-size and large companies from the manufacturing, retail and service industries. Associations, public corporations and sophisticated private clients also make use of our expertise in a wide variety of legal fields. National and International Presence Heuking Kühn Lüer Wojtek has eight offices in Germany as well as offices in Brussels and Zurich. We maintain close contacts with international law firms in all major markets around the world, thus making a worldwide network of competent attorneys available to you. Through various partners, we are represented at the American College of Bankruptcy and at the International Insolvency Institute, as well as in numerous other national and international associations. 2

3 Comprehensive Advice for Businesses, Entrepreneurs and Business Partners in Crisis Situations The experts of Heuking Kühn Lüer Wojtek actively support the process of achieving your objectives as a business, entrepreneur or business partner in times of crisis. Successful restructuring is usually the best solution in this type of situation. Our counseling goes far beyond searching fresh money. Together with you and our experienced network of certified accountants and business consultants, we will develop and implement a comprehensive strategy for successful restructuring. Even if you, as a business partner of a company in crisis, are solely interested in the enforcement of your claims and/or the maintenance of supplier relationships, we will actively support you in this process. 3

4 Restructuring during Corporate Crisis If a company is pushed into crisis, the experts of Heuking Kühn Lüer Wojtek will provide advice on successful restructuring, which due to our holistic approach begins with the identification and evaluation of the status quo. Only those who know the reasons for undesirable business developments in the past can make the right decisions for the future. Once the reasons for the corporate crisis have been established, it needs to be determined whether restructuring promises to be successful, and whether the company can be turned around. If so, we will prepare the necessary steps, coordinate them with all parties involved, and then proceed to steadfastly implement those steps. At the beginning, we will, in concert with yourself, establish the objectives to be achieved. It may be your objective to remain as a shareholder and to continue to manage the company in the future. We will provide comprehensive advice on tax requirements for restructuring plans and on maximizing restructuring profits. An alternative objective may be the discharge of debt or the release from liability, in particular if you as a shareholder have personally incurred debts for or guaranteed liabilities of the company. 4

5 We will actively support you in achieving your objectives, and we are prepared to negotiate with other parties involved, such as other shareholders, banks, creditors, or other stakeholders. Against the backdrop of a possible insolvency of the company, a corporate crisis poses a number of civil and criminal liability risks for directors, executives and other stakeholders which should not be underestimated, including liability for delayed filing for insolvency, fraud, or preferential treatment of creditors. We will show you strategies for minimizing these and other risks. If the company s insolvency can no longer be avoided, we will also represent you in your capacity of general manager, president/ceo or creditor of the company in insolvency proceedings in order to achieve a sustained recovery. To this end, where appropriate, we will prepare insolvency restructuring plans or advise you on the acquisition of companies in insolvency, including transactions known as restructurings by transfer of the business. In such cases, by transferring all assets required for operation of the business (asset deal), the business is often transferred to a receiving entity established by former managers (management buyout) or by shareholders. For your benefit, we are able to draw on many years of experience in dealing with insolvency administrators and on our well-established personal contacts when acquiring companies in insolvency. 5

6 Reliable and Professional Network Due to our membership in committees and associations and thanks to our extensive corporate restructuring experience, we have developed contacts and successfully collaborate with numerous professionals and reliable partners. Our network comprises certified accountants, business consultants, and potential investors for (performing and non-performing) loans or shares, and extends to management agencies specializing in the placement of restructuring experts for limited time periods. With our proven network, we are in a position to prepare and support your restructuring efforts far beyond the legal work. 6

7 Restructuring Human Resources The restructuring of companies often involves measures having far-reaching consequences under employment law. Our team will support you during this difficult process. We will prepare layoffs, and design and negotiate reconciliations of interests, social plans and company labor agreements with works councils and trade unions. We will represent you before labor-management conciliation boards and also represent your company in wrongful termination proceedings. We also provide advice on the setup of employment and retraining companies and of transfer companies, including the drafting of any necessary contracts. We will gladly assist you with restructuring working conditions, terminating old and executing new company agreements, and establishing the legal framework for the use of part-time employees. If a company is pushed into insolvency, we will support insolvency administrators in instituting labor law actions that are subject to special rules in insolvency proceedings. We will also assist with shaping the transfer of employment contracts in the course of restructurings by transfer of the business. 7

8 Protection against Crises of Customers or Business Partners The insolvency of customers and business partners may affect any company. The related bad debt losses can however be prevented or at least reduced by drafting insolvency-resistant contracts. The experts of Heuking Kühn Lüer Wojtek will provide you with comprehensive advice in order to avoid bad debt losses and the threat of legal challenges in the event of the insolvency of a customer, to the extent possible. We actively support you in effectively negotiating loan collateral, such as simple, advanced, or extended retention of title clauses, security assignments, guarantees, letters of comfort, and liens. If you are in urgent need of a supplier s services whose business is in crisis, we will show you how to continue and maintain your relationship with the supplier without exposure to disadvantages and avoidable risks. 8

9 Enforcement of Claims in Case of Insolvency Many companies simply write off their debts when a debtor is insolvent. Often, they don t know that especially in corporate insolvencies, high claim satisfaction rates are no longer a rarity thanks to new provisions of the German Insolvency Code. We will represent your interests as a creditor to enforce your claims and rights against debtors, insolvency administrators and third parties. Our work goes far beyond the registration of your claims in the schedule of claims. We will enforce your credit guarantees and rights for the release of property. We will advise you on managing and maintaining contractual relationships and represent your interests in meetings of creditors and creditor committees. In addition, we will consider claims for damages against other parties involved and handle them for you in the event of creditor discrimination. 9

10 Litigation Especially in disputes under insolvency law, litigation is often unavoidable. The experts of Heuking Kühn Lüer Wojtek have many years of litigation experience.... for Creditors We will represent you as a creditor in the enforcement of your claims and security interests in court. In many cases, however, we will succeed in enforcing claims against the insolvency administrator out of court.... for Directors and Board Members... for Shareholders The risks to which shareholders are exposed in an economic crisis or a potential insolvency of a company should not be underestimated. Shareholders are often threatened with claims by insolvency administrators, creditors or third parties, such as claims for equitable subordination of shareholder loans or under the rules of contributing and maintaining capital. We have many years of experience in representing concerned shareholders in and out of court. We often provide counsel to managers and directors in disputes with insolvency administrators and creditors in and out of court. 10

11 ... for Contractual Partners of the Insolvent Company Recipients of goods, services or payments from insolvent companies are often faced with demands by an insolvency administrator for the return of such benefits. Provisions of law allowing to contest past transactions are used by insolvency administrators to dispute the validity of services previously rendered and to make repayment claims. These provisions have in the recent past been made more stringent by the Insolvency Code. We are constantly monitoring Supreme Court decisions on this issue and are intricately familiar with ways to defend claims for avoidance by insolvency administrators. We will be glad to advise and represent you in such cases.... for Insolvency Administrators Finally, we regularly represent renowned insolvency administrators in the enforcement, in and out of court, of payment claims of the insolvent estate, claims for damages, and claims for avoidance, both in Germany and abroad. 11

12

13 The right Time to invest Companies in crisis not only pose risks, they also offer great opportunities. No wonder that many investors want to invest specifically in distressed companies. The experts of Heuking Kühn Lüer Wojtek will gladly advise you on such investments. We are proficient in mergers & acquisitions law (asset deals, share deals, management buyouts, leveraged buyouts), and we are aware of the specific problems arising in connection with the acquisition of companies in distress or insolvency. We also have extensive expertise in the purchase of non-performing loans. By purchasing a company s debt, especially senior and secured debt, investors often gain a strong position for dealing with the company and other stakeholders. We will advise you on the purchase of such debt and with respect to all other options, including resale, conversion into equity (debt equity swap), or any other type of restructuring. From the time of trade confirmation to the time of exit, we are a reliable partner for all legal and tax issues, both for crisis investors as well as sellers and companies in distress. 13

14 Berlin Frankfurt Chemnitz Hamburg Cologne Munich Brussels Düsseldorf Stuttgart Zurich photo credits Armin Rose (1), Karl-Heinz Peisker (2), Alan Majchrowicz / Peter Arnold (5), Ioana Drutu (5), Thomas Einberger / argum (6), Uli Wiesmeier / LOOK-foto (7), Paul Morton (8), Markus Spiske (10), Carolin Schock (11), Nikolay Mamluke (11), ALIMDI.NET/FB-Fischer (12, 13), Zenshui / Michele Constantini (13), Archiv HKLW Photos and illustrations have been determined to the best knowledge and conscience. Authors not mentioned may contact the publisher please.

15 Restrukturierung Restructuring Ihre Ansprechpartner Your contacts Dr. Günther Bredow, LL.M., Frankfurt Kai Uwe Büchler, München Dr. Fabian Bürk, LL.M., München Dr. Arnold Büssemaker, München / Frankfurt Dr. Elena Chertkova, München Dr. Stephan Degen, München auch Steuerberater, Maître en Droit Dr. Kai Erhardt, Hamburg auch Steuerberater Daniel Froesch, Frankfurt Regina Glaser, Düsseldorf Christopher Görtz, Köln Dr. Christian Groß-Bölting, Köln Dr. Robert Güther, Berlin Anja Harms, Frankfurt Christoph Hexel, Düsseldorf Dr. Guido Hoffmann, LLM., Düsseldorf Dr. Volker Howe, Düsseldorf Dr. Pär Johansson, Köln Dr. Karsten Kühne, Berlin auch Notar, vereidigter Buchprüfer Dr. Benjamin Kurzberg, Berlin Dr. Thorsten Kuthe, Köln Finn-Michael Liebscher, Frankfurt Joachim Littig, Berlin David Loszynski, Hamburg Dr. Holger Lüders, Düsseldorf Dr. Hans-Jochem Lüer, LL.M., Köln Prof. Dr. Andreas Müller-Wiedenhorn, Köln Michael Neises, Frankfurt Michael Pauli, LL.M., Düsseldorf Dr. Stefan Proske, Berlin Tim Remmel, LL.M., Köln Dr. Marc P. Scheunemann, LL.M., Düsseldorf Dr. Johan Schneider, Hamburg Kristina Schneider, LL.M., Köln Dr. Christoph Schork, LL.M., Köln Thomas K.W. Schrell, LL.M., Frankfurt Adi Seffer, Frankfurt Christian Staps, Frankfurt Prof. Dr. Georg Streit, München Dr. Marcus Georg Tischler, Hamburg Klaus Weinand-Härer, Frankfurt Bernd Weller, Frankfurt Tobias Leege, Chemnitz 12/2014

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