Company Voluntary Arrangements (CVAs) were introduced to be a flexible business rescue procedure. They are meant to provide a flexible way of restructuring a troubled business which will lead to a better outcome forcreditors than liquidation and allow the existing shareholders to retain ownership and control of the business during the process. This article looks at the pros and cons of this approach.
What is a Company Voluntary Arrangement?
the starting point for a CVA is the proposal of a deal by an insolvent company to its unsecured creditors, which will include everyone owed money such as trade creditors, employee claims and Crown debts (PAYE/NI and VAT), (but will exclude secured creditors such as its bankers or asset based lenders). The deal can be anything that the company thinks is appropriate and deliverable, such as say a payment of X pence in the pound in full and final settlement, or a standstill on payments to allow some transaction such as a property sale in place, or a payment plan over a number of years, or some combination of these elements.
The offer is sent to the creditors who then vote whether to accept, reject or amend the proposal. If a proposal is approved by both 75% by value of all creditors who vote, and 50% by value of all unconnected creditors, then the deal is binding on all the creditors who were circulated with the proposal. The company’s compliance with the deal is then monitored and enforced by an Insolvency Practitioner (IP) as Supervisor.
The advantages of a CVA
CVAs therefore have a number of potential advantages for a business in difficulties as they:
* are flexible as to what deal can be proposed to creditors, although obviously it has to be one that gives them a better return than their other options such as an insolvent liquidation, and the proposed Supervisor, (called the Nominee at this point), has to agree that the plan appears practical;
* allow different deals to be put to different groups of creditors if this helps to obtain approval;
* allow existing management to remain in charge of the business;
* avoid the disruption that an Administration would cause where an IP takes over the management of the business;
* provide protection for the company against recovery actions due to its old creditor burden while the restructuring is taking place.
They therefore provide a mechanism for achieving a solvent restructuring of the company which enables its shareholders to retain their ownership of it, and hopefully go on to recover some value, while also offering creditors a better return than the alternatives, if successful.
The disadvantages of a CVA
So what are the downsides?
When a company proposes a CVA it has to notify all its creditors that it is insolvent, but it does not obtain protection against creditor actions until the deal is approved, which allowing for amendments and adjournments, can be up to a month and a half later in some cases.
So the company does face a risk that some creditors will simply step up their recovery action during this period in an attempt to force payment in full before any compromise deal is agreed. Landlords are a particular risk here as they have the power to forfeit your lease for non paymnet or to send in baliffs to seize goods for sale to pay off arrears. But other creditors may issue winding up petitions, or try to recover stock under retention of title clauses.
There are two ways to avoid this type of action and obtain protection prior to approval of the proposal:
* Moratorium – there is a variation of the CVA procedure for small companies which provides the protection of a moratorium on any creditor action before the meeting, however this requires such a level of personal commitment by the IP nominee that very few are prepared to take these on
* Administration – appointment of an Administrator also gives the protection required but will involve an extra layer of costs, which can be substantial, as well as usually damaging the business reputationally.
Secured creditors cannot be affected by a CVA proposal, without their specific consent, so if the business’s problems stem from fundamental overborrowing then a CVA may not be an appropriate remedy.
Given the timescales involved, a business may well suffer some damage in the marketplace during the period leading up to the creditor meeting as competitors use the news and uncertainty as an opportunity to attack the company’s customer base.
Careful consideration needs to be paid to the future trading plans. In particular you will normally need to assume that the business will not be getting any supplier credit, at least to start with. You will therefore need to ensure it has sufficient cash available for trading on this basis.
It’s important to reemeber that a CVA simply enables a business to restructure its balance sheet. It does not help the business to fix the underlying problems that have led to the balance sheet problems. So a CVA almost always needs to be accompanied by a full business turnaround exercise which will involve restructuring both what the business does, and how it does it, so that problems are avoided in the future. One criticism of CVAs therefore is that in relieving the creditor pressure on management, sometimes this removes the pressure for tackling the changes required.
So, if your business is thinking about a CVA, is it also worth thinking about the change process that will need to run alongside it to take advantage of the opportunity the CVA will provide for real business rescue?
Of course the information contained in an article like this can never be a full statement of the legal position as the relevant laws are complex and liable to change. This article can only therefore be a general guide as to the issues involved and as these can have serious implications you should always seek appropriate professional advice on your own particular circumstances before taking any action.
About the Author:
Mark Blayney is an accredited business rescue expert and author specialising in owner managed businesses. For more information about Mark Blayney and his company Turnaroundhelp Ltd. see: www.turnaroundhelp.co.uk