Crisis Management Checklist for CFOs

15 May 2020

The fact that the COVID-19 epidemic will have a significantly negative impact on the economy has been more or less universally accepted. According to current projections, Slovenia will face a drop in GDP ranging from 6 % (according to the Institute of Macroeconomic Analysis and Development) to 16 % (according to the Bank of Slovenia). On the other hand, negative economic effects of the epidemic will not be evenly distributed – some companies and industries will be affected directly (and, in terms of timing, sooner) while others will be affected indirectly (and later).

What all companies have in common, however, is that we are entering into a period of financial uncertainty. In this context, the two questions most frequently asked by managers of companies are the following:

1. What are my duties under Slovenian law in the context of general financial uncertainty? (see Director's Duties below)

2. What are my options under Slovenian law in terms of adjustment/restructuring of financial liabilities? (see Restructuring Toolbox below)

To facilitate the navigation through the uncertainty and a multitude of regulations concerning this topic, we have prepared a simple two-page overview – a crisis management checklist – summarising key information related to the above questions.

Furthermore, the overview lays down statutory rules enacted by the Slovenian National Assembly in the context of the anti-corona legislative package until and including the cut-off date indicated in the top right corner of the overview (i.e. including the rules which, until such cut-off date, have not yet entered into force as they have not yet been published in the Official Gazette of the Republic of Slovenia). It should be noted that these regulations will likely be subject to further changes after the stated cut-off date. Therefore, monitoring legislative changes is recommended.

Read and download the below crisis management checklist here. Available also in German and Slovenian.

Crisis management checklists for other countries available for download here: AustriaCroatiaCzech RepublicHungaryPolandRomaniaSerbia.

Directors' Duties

WHAT DUTY?

WHAT DOES IT MEAN?

WHEN DOES IT APPLY?


Maintenance of solvency

Management of business risks

 
  • best efforts to preserve company's liquidity and sound financial structure
  • duty to manage and continuously assess credit risk, market risk, operational risk and liquidity risk
  • specific duty to take known crises into account for liquidity management purposes
    • CAVEAT: liquidity support via shareholder loans if a company is in "crisis" may entail equitable subordination of such loans (resulting in a repayment ban during "crisis" and/or subordinated status) in potential subsequent insolvency
 


Pre-crisis and post-crisis

Enhanced scrutiny in respect
of known crises


Suspension of non-essential payments

Prohibition of unequal treatment of creditors

 
  • non-essential payments are no longer permitted
  • permitted payments are limited and include:
    • employment-related expenses (such as wages and related social contributions, severance payments etc.)
    • regular operating expenses (electricity, water etc.)
    • regular/scheduled payments to suppliers and
    • tax liabilities
  • general prohibition of unequal treatment of creditors
  • transactions resulting in preferential treatment of certain creditors and/or reduction of value of company's assets may be challenged/subject to claw-back in hypothetical subsequent insolvency proceedings
 


Onset of Insolvency * ("T")


Preparation of Restructuring Report

 
  • preparation of financial restructuring measures report ("Report"):
    • description of financial position / reasons for insolvency and
    • assessment as to possible out-of-court (including capital increase) restructuring and court-sponsored restructuring measures
  • Report must be delivered to supervisory board / shareholders' meeting of company
 


T + 1 month ("T2")


Capital increase

 
  • if Report establishes that capital increase is required/feasible, management must call a shareholders' meeting (notice period can be shortened to 15 days)
 


T2 + 8 days OR

C-19 END ** + 1 month


Filing for Compulsory Settlement

 
  • if:
    • attempts of share capital increase / out-of-court restructuring fail but
    • Report nonetheless establishes >50% chance of success of compulsory settlement

           management must file for compulsory settlement (prisilna poravnava)


T + 90 days OR

C-19 END + 3 months


Filing for Bankruptcy

 
  • if Report establishes <50% chances of success of compulsory settlement and no prospect of out-of-court restructuring / share capital increase, management must file for bankruptcy (stečaj)
 


T2 + 3 days OR

C-19 END + 3 months

 
  • if (1) Report establishes <50% chances of compulsory settlement success (if share capital increase attempt fails) and (2) capital increase attempt fails, management must file for bankruptcy (stečaj)
 


3 days upon establishing failure
of share capital increase
OR

C-19 END + 3 months

*   ONSET OF INSOLVENCY: Deemed to have occurred when the debtor’s management should have, acting diligently, established that the debtor is insolvent within the meaning of Slovenian law. Under Slovenian law, a company is insolvent if it is either illiquid (cashflow insolvency) or over-indebted (balance-sheet insolvency).

  • Illiquidity – presumed if (i) company is more than two months late with payment obligations amounting to 20%+ of its total liabilities (as per annual statements for preceding business year); (ii) balance on company bank accounts does not suffice for execution of court order for enforcement for 60 days+); or (iii)  company is more than two months late with payment of minimal wages (up to the amount of minimum wage) to employees or prepayment of employees' income taxes and social contributions; or (iv) [COVID-19 Measure] the company is more than one month late with payment of wages and social contributions if state support was received within the COVID-19 emergency framework to fund these payments [Presumption applies for four months following C-19 END].
     
  • Over-indebtedness – presumed if (i) company's liabilities exceed its assets; or (ii) current losses plus losses carried forward reach 50% of company registered share capital and cannot be covered by reduction of carry-forward profits or reserves (reduction of net assets to 50% of registered capital).

**       C-19 END means the end of duration of the COVID-19 epidemic emergency legislative package (currently envisaged to stay in force until 31 May 2020). IMPORTANT: prolonged deadline applies only to companies who became insolvent as a result of the COVID-19 pandemic (this is presumed in case a company was subject to compulsory / official closure order) and, in respect of capital increase, if the requisite corporate acts could not have been adopted due to objective circumstances resulting from the COVID-19 pandemic.

 

Restructuring Toolbox

WHAT MEASURE?

WHAT DOES IT DO?

WHAT IS REQUIRED?


Out-of-court
Restructuring

 
  • arrangement between company and its creditors (typically financial creditors) where:
    • creditors agree to postpone enforcement of payment claims for limited period of time such that terms of restructuring can be agreed ("stand-still") and
    • if negotiations are successful, creditors and company enter into master restructuring agreement ("MRA")
  • freedom of contract:
    • parties are free to shape contents of standstill/MRA but
    • all affected parties (company and relevant creditors) must agree to stand-still and MRA
 


Consent by all affected creditors


Preventive
Restructuring

 
  • legal tool aimed at enabling eligible distressed Slovenian companies to avoid insolvency by entering into MRA with financial creditors outside compulsory settlement proceedings:
    • if creditors holding 30% of company's financial claims agree to start proceedings, this will result in compulsory stand-still for entire class of financial creditors (3-8 months)
    • if creditors holding 75% of company's financial claims agree to MRA (separate voting in secured and unsecured creditor class), terms of MRA are compulsory for all ("cram-down")
  • new financing will have statutory super seniority status in case of subsequent compulsory settlement/bankruptcy
  • stand-still and cram-down will apply to Slovenian and non-Slovenian creditors
 
 
  • 30% of financial creditors agree to moratorium
  • 75% of financial creditors within affected class agree to MRA
  • limited involvement of court
 


COVID-19 Moratorium

 
  • legal tool (emergency COVID-19 measure) enabling COVID-19 affected Slovenian companies to apply for suspension of payment obligations under bank loan agreements maturing after 12 March 2020 (date official declaration of COVID-19 epidemic in Slovenia) for a period of 12 months
  • affected company must file application with bank setting out amongst others:
    • confirmation of inability to make scheduled loan payments and description/evidence of business deterioration due to COVID-19 crisis and plan for re-establishing liquidity
    • confirmation of no outstanding tax/social contributions
  • companies having received the benefit of the moratorium are subject to restrictions in relation to dividend pay-out, payment of reward for business performance to management/employees and settlement of financial liabilities to affiliated persons
  • dismissal of a complete/justified application will result in fine of up to EUR 250,000 for bank
  • moratorium only affects Slovenian banks and branches of EU banks in Slovenia
 
 
  • Filing of application
  • Self-certification of COVID-19 related inability to service loan
  • Slovenian bank lender
 


Compulsory
Settlement

 
  • legal tool aimed at enabling eligible insolvent Slovenian companies to regain solvency by entering into arrangement with creditors (all or only financial) in context of court-supervised restructuring proceeding
  • key features:  
    • debtor must demonstrate insolvency, potential for restoring solvency, and that creditor recovery terms will be more favourable than in bankruptcy (to be confirmed by external certified experts)
    • commencement of proceedings will result in restriction of activities to ordinary course of business, supervision by insolvency administrator / court
    • opening of proceedings will result in enforcement holiday in respect of the company and
    • if approved by requisite majority of affected creditors (separate voting in affected classes), terms of settlement will result in cram down
  • new financing will enjoy statutory super seniority in case of subsequent bankruptcy
  • stand-still and cram-down will apply to Slovenian and non-Slovenian creditors
 
 
  • Formal declaration of insolvency of debtor company
  • Application with court
  • Eligibility certification by external experts
 

Vid Kobe

Partner

T: +386 1 200 09 34
v.kobe@schoenherr.eu

Linkedin

Jurij Lampič

Attorney at Law

T: +386 1 200 09 74
j.lampic@schoenherr.eu

Linkedin

Peter Gorše

Attorney at Law

T: +386 1 200 09 68
p.gorse@schoenherr.eu

Linkedin