As young companies, startups often have limited liquidity reserves. This lack of equity is particularly significant if a financing round doesn't go as planned and no further funds are forthcoming. This can lead to a startup getting into financial difficulties in the short term because it can no longer service its liabilities. If, in such a case, a company is already insolvent – that is, one of the two grounds for insolvency regulated under German insolvency law: excessive indebtedness or insolvency – you, as the managing director of a startup, are obligated to file for insolvency within the statutory deadlines. The most important message in this context: Even in the event of insolvency, the story of your company does not automatically end in liquidation.
Obligation to file for insolvency is fully effective again
In the event of your startup's financial difficulties, you as a managing director should be aware that the obligation to file for insolvency will again apply in full as of January 1, 2024. If insolvency has already occurred, you as a managing director have three weeks to resolve the situation or file for insolvency. In the case of over-indebtedness, the law grants you six weeks to do so. What is not explicitly stated in the law, but nevertheless applies: These deadlines can only be used by those who can present a restructuring plan that has a prospect of successful implementation.
If restructuring is no longer possible, only one option remains: immediate insolvency filing.
In order to be able to assess the company's situation at any time, careful business planning is necessary. If this indicates that insolvency is imminent within the next 24 months, a planned restructuring using the means provided by insolvency and restructuring law may also be considered. Thus, if the crisis is identified early, it can be overcome by incorporating, for example, shortened notice periods for leases and employees or an insolvency plan that allows for an agreement with all creditors on a (partial) waiver of claims, even against the wishes of individual participants.
In order not to lose any time in the worst case scenario and to be able to act quickly but at the same time carefully, it is advisable to familiarise yourself at an early stage with the possible consequences and the process of insolvency, as well as the different types of proceedings. [see information box Overview of reorganization and restructuring procedures] and keep an eye on the legal deadlines. – The latter is particularly important so that you, as a manager, protect yourself from possible personal liability for delaying insolvency.
Restructuring and reorganizing a company always presents a unique situation. Therefore, it is important to understand the individual instruments and procedures and their specific features in order to subsequently decide on the right course of action:
· On the one hand, there is the so-called standard insolvency procedure in insolvency law.
· Self-administration, i.e. restructuring under one's own direction, and the protective shield procedure, a special form of self-administration, also offer the possibility of reorienting a company.
Since January 1, 2021, there has also been the option of a so-called StaRUG restructuring. This procedure makes it easier for companies to restructure their finances before they become insolvent. If the restructuring is successful, insolvency proceedings can be avoided.
Both standard and self-administration proceedings can be concluded with an insolvency plan, a type of court-ordered settlement with creditors. In protective shield proceedings, the insolvency plan is even designated as the first-choice restructuring instrument and must be submitted within a deadline set by the court. A restructuring under the StaRUG is concluded with a restructuring plan, which is very similar to an insolvency plan.
The advantage: The restructuring or insolvency plan preserves the company's corporate identity, thus potentially preserving the value of the company's shares. The fact that they also benefit from such a restructuring is, in turn, fundamentally an incentive for shareholders to initiate and support such a process.
When professionally prepared and implemented, these insolvency and restructuring procedures provide a reliable framework for implementing necessary change processes within a company in a short period of time. (Photo: Claudio Schwarz on Unsplash)
The transferring restructuring
There are several options for restructuring a startup during insolvency. One is the so-called transfer-based restructuring. This involves transferring the insolvent startup's significant tangible and intangible assets to a new, debt-free holding company – a new company. The holding company acquires all assets from the startup's insolvency administrator, while the liabilities remain with the old company and are settled during the insolvency proceedings. The purchase price achieved for the assets is used to satisfy the startup's creditors.
The great advantage of a transfer-based restructuring is that the startup, its business idea, and its project are continued in a new company that can relaunch financially. The employees are automatically transferred to the new company. The startup thus lives on.
Continuation solution within four months
A good example of such a new start is the Munich-based health tech startup Smart4Diagnostics, where I served as insolvency administrator. Through a restructuring process, we were able to achieve a continuation solution for Smart4Diagnostics within four months. A well-known venture capitalist acquired the business operations of the company, founded in 2018, through the newly established holding company S4DX, and also took over the entire workforce. This now provides a future perspective for the employees and the company's product, the world's first digital and automated tool for quality assurance of human blood samples.
The crisis arose because Smart4Diagnostics, together with renowned partners from the medical sector, had participated in several international tenders with a volume of several million euros, but these tenders were postponed. The startup was unable to cover the running costs and investments in further software development from its ongoing operations until the decisions were made. The existing shareholders were unwilling to invest further funds in the company. As a result, the management filed for insolvency early on, so that a new investor could be sought and found through insolvency proceedings.
A study by Schultze & Braun, focusing on so-called second insolvencies and the sustainability of corporate restructuring, shows that standard insolvency proceedings, self-administration, and protective shield proceedings are associated with successful and sustainable corporate restructuring. In the case of a second insolvency, the company's initial restructuring was not sufficiently sustainable to avoid a subsequent appeal to the insolvency court.
High sustainability rate
In the study (findings, data basis and study design on www.nachhaltige-unternehmenssanierung.deOn the occasion of the tenth anniversary of the entry into force of the insolvency law reform of March 1, 2012 (ESUG), the years since 2012 were examined in detail: In the period from March 1, 2012 to September 1, 2021, a total of 114 second insolvencies were identified based on data from the data analysis provider STP Business Information – 44 of which were initially restructured in self-administration or protective shield proceedings. With a total of around 2,200 ESUG proceedings since March 2012, the sustainability rate is definitely impressive – even if there is no data on how many of the proceedings led to a restructuring solution on the first attempt. This also applies to standard insolvency proceedings – i.e. restructurings with an insolvency administrator – which, nevertheless, have nothing to be ashamed of. 70 second insolvencies out of around 54,400 standard insolvencies also speak for a high sustainability rate.
Another important finding of the study is that the vast majority of identified second insolvencies occurred within the first five years after the initial insolvency. This means that in a restructured company, the causes that led to the initial insolvency have generally been overcome if more than five years have passed since the restructuring.
Seize the second chance the first time
One of the legislators' goals is for companies to view necessary restructuring – especially with the help of insolvency law – as a second chance. Another finding of the study shows that it is important to seize this second chance the first time. It also underscores the importance of sustainable corporate restructuring: Companies that must file for insolvency again within five years of their initial insolvency are almost 1.5 times more likely to be wound up than restructured. This underscores how essential it is to always address the operational causes that led to insolvency in a restructuring, rather than simply cutting liabilities. (Photo: Freepik)
The insolvency plan
The alternative to restructuring by transfer is an insolvency plan. With this instrument, a startup can essentially restructure itself from within. During the ongoing insolvency proceedings, you, as the managing director, negotiate a settlement with the creditors with the involvement of the insolvency administrator, which usually provides for a partial waiver. This can be financed either from the funds generated by the company's continued existence or through third-party funding. The advantage: With an insolvency plan, the company remains intact as such, and the startup's shares also potentially retain their value. The fact that they therefore benefit from restructuring with an insolvency plan is, in turn, fundamentally an incentive for shareholders to engage in and support this process. However, since it requires extensive negotiations with the parties involved and a judicial coordination process, a timeframe of three to six months must generally be planned for an insolvency plan procedure.
Check the appropriate restructuring instrument individually
Even if at first glance it seems as if an insolvency plan is always the better alternative, the motto applies: The appropriate restructuring instrument should be examined individually for each startup. When looking at the insolvency plan, it is the case that most startups – and this is also true – do not have the liquidity reserves to maintain normal business operations until the plan is negotiated, and often do not generate sufficient surpluses to (partially) satisfy creditors. Therefore, in practice, transferring restructuring is the restructuring instrument of choice for most startups, as it can generally be implemented more quickly. In any case, one thing is certain: A crisis or financial difficulties after the company is founded does not have to be the end of a startup.
