Corporate Restructuring/Insolvency

To be successful in business, resilience and adaptability are important. Business leaders can face financial challenges for a variety of reasons ranging from changes in customer needs or demographics, obsolete processes or technology or new, aggressive competition. Waiting too long to make necessary changes to the business can be fatal.

Properly managed businesses routinely prepare integrated business plans and financial forecasts, compare them to actual results and then take corrective actions on a timely basis in an effort to reverse negative results. Business leaders who have not experienced a downturn or who have not had to deal with unexpected change may not know what to do or how to do it. Waiting too long may require a full restructuring of the business.

The first step is for business leaders to accept the need for corporate restructuring and take stock of their situation, including an honest evaluation of the following:

• Can the business remain viable in its current structure?
• Is there a sufficient level of trust and comfort with lenders, suppliers, and other stakeholders to provide time and continued support?
• Is the problem temporary or permanent?
• Is it fixable?
• Does the business have the skills and resources to see it through?
• Can external resources be obtained?

If the evaluation reveals serious issues, the survival of the business may be in jeopardy. The purpose of corporate restructuring is to ensure ongoing survival, to preserve the value of a viable business, or to maximize the recovery from a windup or sale of a business that is no longer viable.

Depending on specific circumstances, the restructuring may be done informally by business leaders, or it may require a formal process. In either case, a successful restructuring needs to be properly planned to ensure that the appropriate required internal and external resources are available, and that steps can be implemented and measured to support a successful outcome.

The corporate restructuring plan

Comprehensive corporate restructuring plans need to be developed and usually consist of both strategic and detailed tactical plans.

Strategic plans summarize what needs to be changed if the business is still viable or, if no longer viable, how a sale or windup can be done.

Detailed tactical plans summarize the steps and timelines of restructuring activities, which may include the following:

• Stakeholder communication plans
• Changes to existing management, administrative and accounting resources and processes
• Updated financial reporting
• Outsourcing of business or administrative activities
• Working capital improvements
  • Increased accounts receivable collections by offering discounts, tightening of credit terms to eliminate poorer credit risks
  • Re-negotiating more favourable product pricing or extensions to supplier payment terms
  • Consignment and/or liquidation of slow moving or obsolete inventory
  • Re-negotiating or terminating leases, supplier, or customer contracts
  • Changes to the product mix
• Adding resources
  • Internal – management, administrative and accounting staff
  • Raising capital through existing or new sources including:
    • Existing lenders and owners
    • Factoring of Accounts Receivable and SRED[1] claims
    • Additional senior or secondary debt
    • Strategic/financial investors
  • Sale of assets or the business
    • Sale/leaseback of real estate
    • Sale of redundant assets, brands, product lines, divisions
    • Sale of all of the business
    • Voluntary windup and liquidation of the business

Informal restructuring

If formal collection remedies have not already commenced or are about to be taken by third parties (e.g. repossession of leased assets, litigation, garnishments and liens, creditor initiated insolvency proceedings, etc.), then there may be time for the business to be informally restructured. This will allow owners to stay in possession and control of the business and may be less costly. Owners know their businesses and are usually in the best position to make necessary changes to preserve and prevent further loss of value. A successful informal restructuring will require that business leaders sufficiently prepare.

Management – having the stamina and the required leadership skills, as well as the buy-in and support of their team in order to meet the demands of the restructuring plans.

Administrative and accounting – producing business plans and integrated financial and cash flow forecasts, internal and external reports to measure results, analyze variances, and provide feedback on a timely and regular basis to business leaders, as well as lenders and other third-party stakeholders, if required.

Lender and investors – maintaining their continued support, confidence, and comfort level that there will be no further deterioration to their position.

Other critical stakeholders – obtaining the support of suppliers, landlords, employees, customers, and other third-party stakeholders, if needed.

Additional resources – obtaining additional personnel, and/or capital from existing or new sources.

Technical expertise – accessing experienced financial and legal advisors to provide technical restructuring and expertise.

Although an informal restructuring can be more flexible and may be less costly, it frequently requires that business leaders have sufficient time and resources to be able to negotiate more favourable terms with most or all of their stakeholders and be able to enter into binding agreements with them.

Formal restructuring

Planning for and carrying out a restructuring takes time. If creditors have threatened or commenced third party collection actions, then there may not be sufficient time to successfully restructure without the business obtaining adequate protection from creditors. Filing of formal restructuring proceedings can prevent or stay creditors from continuing or commencing such actions.

The most common formal restructuring proceedings include:

• Filing a Notice of Intention (NOI) and/or a Proposal pursuant to the Bankruptcy and Insolvency Act (BIA) with a Licensed Insolvency Trustee; and
• Applying to court pursuant to the Companies’ Creditors Arrangement Act (CCAA), which is available for companies with debts exceeding $5 million

The minimum stay period for each of these statutory proceedings is short, however, the restructuring plans can be developed pre-filing and, if necessary, the post-filing stay periods can be extended with the approval of the court. Formal restructuring statutes allow business leaders to continue to control their businesses during the stay period, and creditors can be confident that the restructuring will be done under the supervision of the court.

Formal restructuring proceedings normally prohibit third parties cancelling contracts for non-payment of pre-filing debts. They may also be commenced with the consent of a secured lender who often support a formal filing as part of the terms of a forbearance agreement with the borrower.

Other benefits of a formal proceeding also include:

• Court approval of:
  • Priority for debtor in possession financing
  • Priority charges against assets for directors and professional fees
  • A sales and marketing process
• The ability to disclaim realty leases, or other contracts, if necessary, to make a viable plan
• Court approval of a creditor approved restructuring plan, which binds all creditors

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Formal vs informal restructuring:
Additional considerations:

• Costs of professionals to oversee the process
• Obligation to comply with certain statutory requirements regarding certain information filings to continue protection from creditors, the ability of creditors to apply to the court to be excluded or to terminate the stay, and certain mandatory requirements to be included in a restructuring plan
• Requirement that approval of the restructuring plan is subject to a creditor vote, which requires approval by a majority in number and at least 2/3 in value of unsecured creditors in each class, if applicable, followed by approval of the court
• The rejection of a BIA proposal results in a deemed assignment in bankruptcy of the filing entity
• The rejection of a CCAA plan of arrangement results in a termination of the stay provisions, which is usually followed by a bankruptcy or receivership of the filing entity

Engaging a corporate restructuring advisor

Carrying out a business restructuring takes specialized skills that business leaders may not have, but are critical to a successful restructuring. Experienced corporate restructuring advisors assist businesses to plan, develop, and carry out a restructuring plan by providing:

• Strategic advice and option analyses to shareholder(s) and management
• Assistance to internal accounting resources with preparation of financial projections, cash flow forecasts, and variance analyses
• Information to and negotiations with lenders, trade suppliers, and other stakeholders of the business
• Advice and assistance with the development of the restructuring plans
• Preparing for and carrying out a capital raise, sale, or windup of the business
• Assistance with implementation and monitoring of the restructuring plan, on behalf of owners/management and third-party stakeholders

A restructuring of a business has been used successfully by business leaders to preserve value when resources and processes cannot be changed quickly enough to meet a changing or completely new environment. Delaying the inevitable may be costly and perhaps fatal for all stakeholders, especially to the owners of the business. The nature of the restructuring will depend on the specific circumstances involved. Taking the time to properly plan the restructuring, including getting advice from experienced restructuring advisors as soon as serious warning signs arise, is always prudent.

About the author

Ken Pearl, MBA, CPA, CA, CIRP, LIT, is a Partner of Fuller Landau LLP and a Senior Vice President in the Corporate Restructuring and Insolvency group. Ken can be reached at 416-645-6519 or kpearl@fullerllp.com.

[1] Scientific Research and Experimental Development