The 2006
                 EMTEC
               Turnaround
                   A Successful
                    European
   ...
PREAMBLE

The EMTEC business began over 40 years ago through the BASF Chemical Company’s launch
of the famous red spiral m...
of view, the methods and protocols applied, and lessons learned from the implementation
and coordination of a truly Europe...
matter of interest, the Austrian subsidiary was managed atypically, that is to say it was not
subject to the control of th...
Due to the costly and extensive litigation involving the Metaleurop Nord insolvency
proceedings (i.e., impact of Douai App...
-     The group’s merchandise and stocks were supplied from France
     -     The sales policy was established in France
 ...
local directors in all Member States to establish the channels. Marc Senechal as creditors’
representative provided the fi...
State is compulsory, professional courtesy and good business sense dictate advising
interested parties and colleagues of o...
a country-by-country basis in ensuring French measures and protocols were able to satisfy
their local requirements.

Case ...
Administrator retaining control over a significant amount of the group’s assets (trades
receivable) this proved to be an e...
distributors typically); on this point the intervention of the EMTEC group’s lawyer Maître
Bremond was indispensible.

Ove...
What is essential in this type of multi-country reorganisation is the assistance of a proven
and reliable Human Resource C...
Indeed important to stress fast communications via E-mail; all important contracts,
documents, confidentially undertakings...
A winding-up unit was set up under the supervision of the French administrator and
liquidator, acting jointly, to ensure a...
3. Keep creditors and employees alike informed in real time on strategy, important
      events.
   4. Quickly meet with f...
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Emtec May 2009

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This paper I began writing in January 2009 as a way of saying thank you to my client, French Judicial Administrator Hélène Bourbouloux.

Maître Bourbouloux is a high-energy and extremely conscientious Insolvency Practitioner (IP). Her approach is that of a team player - she is a very optimistic person.
Companies who work with Maître Bourbouloux are fortunate indeed.

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Emtec May 2009

  1. 1. The 2006 EMTEC Turnaround A Successful European Procedure First application of Council regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Proceedings by a French Court (Nanterre Commercial Court – 92) Insights gleaned from the management of a European Cross-Border Reorganisation Maître Hélène BOURBOULOUX FHB Judicial Administrators Ltd Neuilly Sur Seine / France May 2009 Paper researched and written by Louise Roussel
  2. 2. PREAMBLE The EMTEC business began over 40 years ago through the BASF Chemical Company’s launch of the famous red spiral mark. It was then that BASF/EMTEC became the recording media pioneer when they started producing audio-cassettes. In 1996 BASF Magnetics broke away from the group to become a company in its own right and the same year they launched their CD-Recordable range of products. In 1997 the company was renamed EMTEC Magnetics. In 1999, they launched their DVD- Recordable range and in 2000 they introduced the EMTEC brand worldwide. In 2004, although highly successful with their product range the company found itself in financial difficulty due to market conditions, and the winding-up was pronounced in Germany. The assets were purchased by a French investor who then set up the group’s holding in Holland for tax reasons and managed the operations from France. The 12 companies, 11 European and 1 Asian, disposed of 24 branches located throughout Europe and Asia. EMTEC continued in the business of production and distribution of recordable devices and data storage equipment (Audio cassettes, VHS video cassettes, hard disks, DVDs, design and development of USB keys, etc). Quickly followed were lower demand for the company’s historical flagship products: audio cassettes and VHS, and a significant drop in prices on the CD and DVD markets due to grey market trading1. Compounding the problems were the oversized facilities and a costly restructuring of the former BASF subsidiary with the result that the EMTEC group found itself unable to meet its financial commitments. By January 2006, the group were forced into receivership. It is the intention of the author to focus on the practical and operational aspects of the management of a European Insolvency Procedure under French law. Maître Bourbouloux hopes that this paper will serve to shed some light into the approach she chose, her points 1 Grey Market Trading is the sale of products by distributors that haven’t been authorized by the manufacturer. Often these goods are sold at discounted prices. However, if there is any problem with the product, the manufacturer may refuse to honour its warranty 2
  3. 3. of view, the methods and protocols applied, and lessons learned from the implementation and coordination of a truly European insolvency. TIMELINE – CHRONOLOGY OF EVENTS January 30th 2006 Eleven entities of the EMTEC Group, namely three French Companies and eight European Community subsidiaries which included the Dutch Holding Company MLS, file separately for bankruptcy at the Nanterre Commercial Court in France. February 1st 2006 Nanterre Commercial Court opens three separate main reorganisation proceedings for the French companies and postpones its decision on the 8 EC subsidiaries until further notice. In the interim the Court requests that documents for the EC subsidiaries be translated to French and that creditor opinion be solicited in the matter. Proceedings were opened for: 1. EMTEC International SAS, responsible for strategy and general management of group. Also oversaw personnel management, accounting, and marketing for the group. 2. EMTEC Magnetics France, the hub of the business. As main company it oversaw commercial policy and distribution network for group, also responsible for centralised purchasing, invoicing subsidiaries, sales forecasting, managed cash flow. 3. EMTEC RPS International SAS, responsible for commercial customer accounts, grouped business orders for foreign subsidiaries of group. February 15th 2006 When requested information received, the Nanterre Commercial Court opened a further 8 separate and main proceedings for the following Member States of the European Union: Austria (1) - entered EU 1995, Belgium (2)*, Germany (1)*, Holland (1)*, Italy (1)*, Poland (1) - entered EU 2004 and Spain (1) - entered EU 1986. * Founding Member April 11th 2006 At the request of the local creditors, secondary proceedings were opened by the Austrian courts and limited to the assets located in Austria belonging to the Austrian subsidiary. As a 3
  4. 4. matter of interest, the Austrian subsidiary was managed atypically, that is to say it was not subject to the control of the French “direction” as the other subsidiaries of the group were. The French administrator reacted quickly and on April 21st, 2006 flew to Austria to meet with her counterpart, the liquidator, to negotiate a stay of the Austrian proceedings. Due to the fact that main insolvency proceedings had already been opened in France, the Austrian proceedings were limited to asset realisation activities2. The Austrian liquidation proceedings were stayed by mutual consent after discussions between the French judicial administrator and Austrian judge.3 May 3rd 2006 11 court orders awarding sale transfer of EMTEC to DEXXON, French group. Assets located in Austria were excluded from transfer. The Austrian judge and liquidator were both present at the Nanterre hearing and were able to reassure new owners of their willingness to cooperate. June 14th and 21st 2006 Conversion of all main proceedings into liquidation proceedings. Upon an application of the French liquidator, secondary winding-up proceedings were opened in Member States to facilitate the realisation of assets and payment of claims and to favour a more equitable distribution of proceeds among eligible creditors. PROCEDURAL STEPS FOLLOWED 1. Determination of COMI / Solid preparation work Surrounding issues EMTEC was innovative for French courts in two ways – > In employing the EC regulation on COMI for the first time by opening 11 separate and main proceedings in France for the group of European companies, and secondly in applying French legislation to a group of companies rather than simply to a company and its branches. The registered head office - the holding company of the group, was not located in France but in Holland. 2 Secondary proceedings limited to winding-up (liquidation) proceedings as per Article 3, Paragraph 3 and as per Article 16, Paragraph 2 of the Council Regulation (EC) 1346/2000. 3 Duty to cooperate as per Article 31, Paragraphs 1, 2 and 3 of the Council Regulation (EC) 1346/2000. 4
  5. 5. Due to the costly and extensive litigation involving the Metaleurop Nord insolvency proceedings (i.e., impact of Douai Appeal Court judgment quashed by Cassation Court /circa 2004/2005), the French Courts together with Maîtres Bourbouloux and Sénéchal opted for a regrouping of 11 individual proceedings in France allowing them to better manage the debt, and thus the outcome of the proceedings. In the Metaleurop case, the French liquidators had attempted to extend the French subsidiary’s procedure to the parent company in Switzerland (Metaleurop SA) due to an interpretation of commingling of assets; the French Cassation Court ruled against this extension. There were questions about the financial flows and commingling of assets between EMTEC Magnetics and the Dutch holding as well, but these uncertainties were left to be dealt with within the parameters of one country’s insolvency legislation. Decision to open separate insolvency proceedings for each of the 11 companies On opening separate and main proceedings in France for the 11 entities of EMTEC which included the Dutch Holding MLS, the French Courts avoided immersing themselves in conflicting national laws which could have had adverse effects on the group’s insolvency proceedings. But the main reason for grouping together the insolvency proceedings in one country was strictly operational- this approach allowed the French administrator to move fast, to bargain as a group, and to ensure an equitable handling of asset allocation to the 11 companies in order to pay off creditors. It also allowed the administrator to maximise the value of the assets, especially the European-level distribution network. Another reason for opening the entire group’s proceedings in France was to avoid complications due to EC Member States’ legal systems varying widely in their interpretation and handling of many issues relating to insolvency management, i.e., commingling of assets, labour protection, set- offs, etc. Opting to treat proceedings individually and under different legislations would have generated more confusion and seriously slowed down the proceedings for the entire group of companies. As it stood, the French Insolvency Practitioners had to deal with local management operating at 24 branches, which had anywhere from 3 to 40 employees each. Importance of preparing solid evidence upstream to support COMI designation To clearly demonstrate COMI4 as per the EC Regulation, the assistance of lawyer Reinhard Dammann and audit firm Ernst and Young were solicited. They quickly and methodically assembled a cluster of evidence proving that the Centre of Main Interests of the various entities of the EMTEC group of companies was indeed located in France. They demonstrated that: - The company representatives and managers resided in France 4 As per Recital 13 – Preamble to Council Regulation (EC) No 1346/2000: “The ‘Centre of Main Interests’ should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties.” 5
  6. 6. - The group’s merchandise and stocks were supplied from France - The sales policy was established in France - Customer service was located in France - The financing banks were located in France - Centralised purchasing, personnel policy, accounting and information systems were located in France - It was the belief of third parties (main creditors, employees, etc) that the business operated from France Needless to say, the thoroughness and accuracy of the information contained in the file establishing COMI is of prime importance so as to prevent any lingering doubt which may lead to delaying tactics or legal action to have COMI designated elsewhere (i.e. favourable treatment for main creditors back home, forum-shopping, etc.....) 2. Importance of clear and timely communications / professional specialists First priority: Ensure solid dialogue among all key players to the proceedings The success of an international insolvency proceeding largely depends on an efficient coordination of reporting activities, required controls, and two-way feedback from all parties to the process. Banks, creditors, suppliers, company directors/ debtor and employee representatives play an important role in providing the vital information necessary for effective and timely decision-making by the insolvency practitioner. In order to accomplish the above, the administrator must ensure that his communications are clear, consistent and relevant to the immediate tasks at hand. Further and immediately upon his appointment, he must establish structured channels between himself and all contacts allowing the necessary information to quickly flow back and forth in a pre- determined format and agreed upon language. The language of choice was to be English, this language spoken or at least understood by all. Appropriate supports such as electronic mail, faxes, and regular phone calls must reinforce all communications. In the case of EMTEC, the administrator sensitive to the difficult predicament the group found itself in due to it being spread out over a wide geographic area both inside and outside of the EC reassured the directors of the eight foreign companies by quickly establishing a communications protocol qualified as functional, effective and transparent. The European managers had been unsure as to “next steps” in France and the consequence of French legislation on their local business partners, creditors mainly. Immediately upon their appointment by the French Court, both Marc Senechal, the French receiver-liquidator and Hélène Bourbouloux, the French administrator went to work and contacted the group’s 6
  7. 7. local directors in all Member States to establish the channels. Marc Senechal as creditors’ representative provided the first official information to creditors and at the same time invited them to file their claims. Thus began a concerted and determined effort on the part of local management and the two French insolvency practitioners to ensure that all pressing concerns were addressed promptly. The local directors were largely responsible for the speed with which the administrator was kept informed; the IPs returned in kind with almost immediate answers to management questions. IPs also regularly briefed French and foreign stakeholders on developments and strategy in the case. The administrator placed a particular emphasis on reassuring the foreign main creditors on the soundness of the Court’s decision and informing them of the plans to rescue the entire group of companies. From the outset of the proceedings, she went beyond the call of duty by taking the time to visit and meet with the European directors. Well worth the time and effort as this face-to-face approach permitted a more frank dialogue and the positive aspects of the human factor to ultimately transcend the sometimes difficult negotiations. Speed being of utmost importance and once the communications channels were firmly established, the administrator was able to move forward quickly to ensure the efficient administration of the proceedings Second priority: Work with known professionals and target vital tasks required A key responsibility of the administrator is to quickly seize the complexity and scope of the case and appoint the experts and consultants necessary to the efficient and effective management of the proceedings. In order to do this, the administrator must rely upon established firms with a solid reputation for performance delivery and respect of deadlines. The administrator in most cases relies on his profession’s list of service providers who can guarantee work required and who are autonomous in their dealings/performance. Hence the administrator can easily delegate and be freed up to control and supervise core activities of the insolvency proceedings such as scouting for potential buyers, finding the necessary financing, negotiating extensions with creditors and keeping the employee representatives informed of all developments in a timely manner. Case in point / Publication of opening of French Main proceedings Advantage of relying on professionals with an existing European network To timely communicate the existence of insolvency proceedings to other Member States, the main content of the decision opening proceedings should be published as early as possible in those States where establishments are located. Although publication is not a prior condition for recognition of the foreign proceedings5 even when the said publication in a Member 5 As per Recital 29 – Preamble to Council Regulation (EC) No. 1346/2000: “In neither case, however, should publication be a prior condition for recognition of the foreign proceedings.” 7
  8. 8. State is compulsory, professional courtesy and good business sense dictate advising interested parties and colleagues of opening judgments. It was no easy feat to organise the publication of the opening of proceedings in the Member States. Wide variations in requirements were observed between countries. Apostilles6 were sometimes needed, in other cases certified judgments, often several originals of documents were necessary, even notarized acts or the intervention of notary publics were required. Publication within the Community became a thorny issue. The wise decision to delegate this task to a recognised law firm with an established European network paid its dividends. Lawyer Reinhard Dammann, very active in the EMTEC file recommended his German associate who took over the formalities to ensure publication of necessary documents in Member States according to local requirements. Indeed despite the capable handling of the German legal affiliate, publication remained complicated – due to varying paperwork requirements and different processing times among EC countries. Judgments in Spain and Portugal for example, ended up being published in July, more than 5 months after the opening of the French proceedings. Interestingly enough, in the course of arranging for publication of the opening judgments, it was widely observed that interested parties were quite unfamiliar with EC insolvency legislation and requirements in the matter. Perhaps this is an opportune time to mention the Administrator’s suggestion that a more uniform system be set up at least among EC Member States in the publication of the opening of insolvency proceedings. Third Priority: Ensure transparency in all negotiations and dealings In dealing with representatives from culturally-diverse countries where opinions and perceptions of other member states’ internal management differ widely it was of the utmost importance to allay fears by being proactive and ready to help by providing all needed explanations and assurances required. Given that France is known for its labour strikes, highly protective measures for employees, and cumbersome accounting and reporting formalities it was essential to dialogue with European counterparts to reassure them of the flexible nature provided by the separate and distinct country proceedings which would allow the administrator and liquidator to liaise on 6 Apostille is a French word which means a certification. It is commonly used in English to refer to the legalisation of a document for international use under the terms of the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Documents which have been notarized by a notary public, and certain other documents, and then certified with a conformant apostille are accepted for legal use in all the nations that have signed the Hague Convention. 8
  9. 9. a country-by-country basis in ensuring French measures and protocols were able to satisfy their local requirements. Case in point/ Importance of having solid professional contacts locally When the German supplier refused to deliver materials, despite assurances from the French administrator that payment would be made upon receipt of the pro forma invoice, the German law firm had to step in to explain the process to convince the supplier to go ahead. They were able to make analogies between the German and French systems in better explaining the French proceedings. This sufficed – delivery was made. 3. Dealing with concurrent secondary insolvency proceedings Austria had begun secondary proceedings on April 11th 2006. Immediately upon learning of this the French judicial administrator contacted her counterpart to request a stay on any planned liquidation activities and to ensure that both proceedings would be coordinated. Obviously there was an interest in both Austria and the European subsidiaries to stave off any independent action and negotiate instead as a group which could only maximise the value of the assets given the well-established distribution network and the good reputation of the trademark. Due to the quick response of the administrator and the fruitful discussions which took place between the Austrian Judge and French administrator, agreements were reached to postpone any liquidation activities in Austria until further notice. This would give both bargaining leverage and extra time for the administrator to focus on finding a buyer for the group as a whole and sell the operations as a going concern. The Austrian liquidator also agreed to continue to run the local business until the sale of the group was finalised; this included continuing to manage the Austrian subsidiary’s foreign operations which included both EC member and non-member states within Europe. Both the Austrian judge and liquidator were willing to consider selling the Austrian subsidiary to the successful bidder of the group’s reorganisation sale in France. This entailed travelling to the Nanterre Commercial Court to explain to potential buyers the procedures applicable in Austria. In the end the Austrians agreed to sell their subsidiary to the French buyer. Agreed, the Austrian subsidiary could have haggled over the asking price given their advantageous negotiating position after the group’s sale (excluding Austria) through the auspices of the 11 Reorganisation proceedings supervised by the French Court, however with the French 9
  10. 10. Administrator retaining control over a significant amount of the group’s assets (trades receivable) this proved to be an equalizing factor in pushing the deal through quickly and under reasonable terms. The French administrator would later satisfy the Austrian subsidiary’s creditors’ claims. Another interesting point came up during the Austrian secondary proceedings – Which country - France (Main proceedings) or Austria (Secondary proceedings) had jurisdiction over Austrian assets located outside Austria? For non-EC member states, i.e., Romania at the time, it could have gone either way. However for EC member states such as for example, Slovenia, the EC Regulation applied - therefore France retained jurisdiction over Austrian assets located in Slovenia – this country having joined the Union in 2004. Again, the prompt negotiations between the French and Austrian parties satisfied the need to see these potential roadblocks overcome through a quick common sense solution; France would retain jurisdiction over non-member states during the proceedings. The subsequent sale of the Austrian subsidiary included the assets managed by Austria outside its territory therefore allowing Austria to retain control of its business infrastructure. Refer to Order of Eisenstadt Court dated 18 May 2006, demonstrating the Austrian Court and liquidator’s exemplary cooperation in the EMTEC case. 4. On the questions of Securities and Set-Offs – dealing with different legislations The legal provisions were much the same across Member States and all recognised the stay on collection activities, the freezing of the debt and the appointment of judicial auxiliary officers. Further there were no significant differences between Member States in the way title- retention clauses and claims were dealt with, French law providing adequate provisions and security in the matter. Liens were also managed similarly; same goes for Orders from the Supervising Judge. Therefore no difficulties encountered. Set-offs are allowed in France, so no problem in allowing those claimed by foreign creditors. Year end rebates on invoices and cooperation costs for major distributors such as Carrefour were dealt with at a community level in that several major contracts were multi-country. Commercial transactions and agreements were allowed by the Supervising Judge to deal with clients whose head office was located in Switzerland (major supermarket chains and 10
  11. 11. distributors typically); on this point the intervention of the EMTEC group’s lawyer Maître Bremond was indispensible. Overall, the group’s lawyers, managers as well as the administrator and receiver-liquidator reacted appropriately and on a timely basis in dealing with the problems brought forward by French and foreign creditors alike; all was done to ensure that any confusion over rights emanating from the various domestic legal systems were addressed and French law explained in the circumstances. Indeed, many parallels were drawn which aptly demonstrated that creditor rights were not being compromised in any way through the French proceedings. 5. On the labour question - different priorities among the European workforce Not surprisingly, foreign employees were absolutely thrilled with the important protection provided them under French law – employee representatives (ERs) from all Member States affected by the proceedings were canvassed for their views, concerns, expectations, etc....Where there were no elected ER’s as local legislation did not require this type of representation the French administrator requested that an employee be designated by his peers. At the opening of the proceedings, a meeting was held to inform and explain to employee representatives /Employee Works Council members in France next steps. As the proceedings evolved, the administrator was quite surprised to observe the different reactions and priorities among the various countries’ labour forces. As opposed to the French employees, many of the other European personnel were most concerned with who would possibly take over, chances of success for the new owner, corporate and sales strategy, etc... The French employees were more focused on their lay-off allowances (Writer’s note: The administrator smiled at this point). It is true that the French employees included many clerks/ office staff as opposed to sales and production staff constituting the personnel abroad and for this reason it was the French workforce who found themselves most affected by the lay-offs; the new owner in France arrived already equipped with administrative staff. In terms of approach and methodology in the lay-offs: A combination of both French rules and local legislation were employed. This was the more complex aspect of the downsizing operations. But what saved the day was the fact that all of the subsidiaries with the exception of Belgium disposed of enough cash liquidities to absorb the departures. 11
  12. 12. What is essential in this type of multi-country reorganisation is the assistance of a proven and reliable Human Resource Consulting Firm specialised in change management. In this case, the administrator called upon the Lacomblez Firm in France who were able to lead the migration project and liaise and coordinate all activities with the group’s local counsel abroad. There was no need to hire specialised change consultants locally as foreign management and lawyers were able to work with Paris leadership in the matter and carry plans through. In fact, given the fairly normal situations in Spain, Germany (simple consultations to describe and validate procedures), more complicated in Poland due to language problems (Layoffs went ahead and Polish correspondence and procedural documents were translated into English), same for Belgium, the implementation of the change strategy proceeded as planned. 6. The sale of the business – logistics and strategic approach Tender announcements were processed as usual in France. For foreign interests, the administrator contacted likely candidates to provide them with information. E-mail was used primarily for contacts. Depending on whether interested parties were European or not, the administrator spent more time explaining the particularities of French rules for acquisitions, labour consequences, etc... For French candidates, very little information was necessary, more was required for the Europeans and considerably more detail was provided to the non- Europeans. This is where EMTEC management played a key role in furnishing the necessary information and answering all important questions. As it was essential to maximise value for the European distribution network, and the MLS Dutch holding was limited to “a mailing address” with its only asset being the brand and its only creditor its shareholder, the sales strategy focused on the transfer of the entire group with the brand to ensure that the network retained its commercial worth. To apportion brand goodwill to the subsidiaries, it was quite simple in that all proceedings operated from France thus allowing a coordinated approach in assessing value. All companies agreed the brand was not worth anything on its own; it was the distribution network across Europe which gave the group its worth. So the total value of the brand and network was allocated on a pro rata basis to the subsidiaries based on their sales. All company directors agreed to this approach as it appeared the most logical and least complex method of determination under the circumstances. 12
  13. 13. Indeed important to stress fast communications via E-mail; all important contracts, documents, confidentially undertakings were passed on electronically. Unfortunately, most of the data room was physical therefore requiring the travel of interested parties to Paris to view information, etc... EMTEC management and their counsel (Maître Bremond, Ernst & Young) cooperated fully during the sale phase of the proceedings. English became very functional at this point as well. Nevertheless, visits to France were required to attend hearings held by the supervising judge, administrator, etc.... and wouldn’t you know it ...the Contrat Première Embauche (Young Employee Incentive Program) strikes were on full force in “l’Hexagone “at the time! Confirmation of sale and post-transaction operations The signatures on the French acts were appended within 15 days due to the expedience and precision of Maître François Dupuy in drawing up the contracts. Next steps – and depending on country, further acts were required. New subsidiaries were created – which posed a few problems for Poland for example. They would not allow the creation of the new company until the sale deed of the previous was finalised and registered in their country with a notary’s act– hence the need to continue running the original company beyond the cession date. For this reason among others, it was useful to keep the 11 separate French reorganization proceedings opened the 5 and 6 extra weeks beyond the sale transfer date. The logistics of the transfer involved the administrator retaining control over customer invoicing until such time that the new companies were created. The Reorganisation proceedings having remained open beyond the sale transfer date allowed the French administrator to continue to manage the business and its cash flow. For example, Poland continued to invoice under the former company until such time that a VAT number was issued for the new one. Guarantees were provided by the new owner while the administrator retained control over the revenue; the new company agreeing to pay the VAT and copyright taxes due on the interim sales as soon as the paperwork was finished approving new entities. Control over the information system was not passed on to the new owners until such time that the transitory period was finalised (3 May to 18 May). Most contracts were continued, both suppliers and clients; amicable arrangements for the most part. 13
  14. 14. A winding-up unit was set up under the supervision of the French administrator and liquidator, acting jointly, to ensure all accounting matters were settled in collecting the trades receivable; the former management of the group (those who were not kept on by the new organisation), two accountants and a dedicated team from Ernst & Young played an active role during this phase. Due to the reorganisation proceedings having remained open, collection activities were centralised in France making it much easier to deal with European distributors at a community level through set-offs. End of year rebates and Participation, the settlement of which was pending, ended up being the principal reason given by clients not willing to pay. Solutions were found and transactions finalised bringing closure to this controversial question. Also with original teams in place, it was easier to manage relationships with clients. For the smooth conduct of transfer operations, remaining in the legal state of reorganisation allowed the administrator to best deal with lay-offs, the signing and formalisation of relevant acts, and the recovery of the largest part of the assets (trades receivable) for the benefit of the French receiver-liquidator. 7. Good inside news for IPs, and a few tips for success! Recently French Courts have been appointing separate administrators when opening Community Insolvency Proceedings in France, that is to say, if a German subsidiary is involved, both a French administrator and German administrator are appointed to the case. This is for a few reasons, but mainly to allow Insolvency Professionals to keep control over the proceedings. Indeed EMTEC showed the French administrator that she could not go it alone; she needed the expertise of French and foreign local professionals in dealing with the problems specific to her case. French judges feel that due to the excellent cooperation existing between European Insolvency Practitioners it is expedient to appoint separate and local IP’s and have them deal directly with domestic concerns, legislation, protocols, procedures, etc. I will finish by quickly enumerating the factors, in the opinion of Hélène BOURBOULOUX, which are key to expedited corporate restructuring proceedings in Europe: 1. Transparent communication at the earliest stage possible / one language. Be equipped to use modern methods, Blackberry, E-mail, virtual data room, etc. 2. Advise on protocols to be followed, method and format of communication, and reporting relationships. Establish a timetable. 14
  15. 15. 3. Keep creditors and employees alike informed in real time on strategy, important events. 4. Quickly meet with foreign counterparts, judges if secondary proceedings opened. Establish good working relationships, ensure regular contacts. 5. If sole administrator is appointed, rely on established experts! Work closely with the specialists but leave time for the IP to focus on sales strategy, negotiating payment extensions, meetings with ERs, reviewing bids. 6. Use synergies wherever possible, look for win-win compromises among companies, negotiate individually and/or collectively, whichever works best and move FAST! And last but not least, good luck to my IP colleagues when faced with this type of case – If I can be of assistance, please do not hesitate to contact me to share on best practices! Yours truly, Maître Hélène BOURBOULOUX References cited : - Hélène BOURBOULOUX, French Judicial Administrator : helene.bourbouloux@fhbx.eu - Marc SENECHAL, Receiver-Liquidator : senechal@btsg.eu - Reinhard DAMMAN, Lawyer: reinhard.dammann@cliffordchance.com - Guilhem BREMOND, Lawyer : g.bremond@bremond.net - François DUPUY, Lawyer : dupuy@hadengue-associes.com - Cédric COLAERT, ERNST&YOUNG : cedric.colaert@fr.ey.com - Jean-Pierre LACOMBLEZ, Human Resources / Change Management Consultant : lacomblez.jean-pierre@wanadoo.fr LOUISE LAFRENIERE ROUSSEL Louise.lafreniere@orange.fr Linguiste commercial/ anglais URSSAF U6002 677012 5 SIRET 431 285 139 00017 Enregistrée sous # 22.60.01726.60 au DRTEFP de Picardie BNC contrôlée - TVA no. FR 744 312 851 39 « Membre d’une association agréée, le règlement des honoraires par chèque est accepté. » Tel.: 33 (0)3 44.09.28.11 / 33 (0)6 76.47.18.90 15

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