External management is the preservation of a drowning business by replacing the management of the company. Its introduction takes place at the conclusion of the arbitration court (based on the decision of the meeting of creditors). Deviations from the generally accepted structure are provided for by the Federal Law. Such a procedure is carried out so that those who were previously in control could not appropriate the remaining funds and completely ruin the existing business.
Transfer of board
The establishment of external management means the appointment of a new CEO, while the "old" is removed from his duties. All relevant paraphernalia (stamps, values, keys to management) and accounting are transferred by the previous boss to the new one. The external management procedure is introduced for a maximum of one and a half years, after which the issue of bankruptcy or reorganization of the enterprise is considered. The period may be extended in the manner prescribed by the Federal Law for no more than 6 months. These activities are carried out in order toclean up the company, solve the problems that have arisen, help creditors to collect their debts.
Actions aimed at overcoming the state of bankruptcy are carried out in order to restore the solvency of the organization (if such an opportunity can be realized using organizational and economic measures). The introduction of an external management procedure allows the reformation of the legal status of a bankrupt organization:
- the head of a bankrupt institution resigns and within three days transfers all material assets and documentation to the new manager;
- non-executive governing bodies cease to have any competence in resolving issues, responsibility is shifted to an external manager or partially to a meeting of investors (solving major transactions, signing important contracts);
- removal of previous measures to satisfy creditors' claims, including seizure of property (this step does not require court rulings, other restrictions on the debtor are introduced as part of the bankruptcy process);
- introduction of a moratorium valid for the entire period of external management, aimed at fulfilling the requirements of creditors for obligations of the financial plan (payment of debts, compensation for losses).
Optional procedure
Anti-crisis management of the property of an enterprise that has become a debtor cannot be considered an integral part of the bankruptcy procedure. This scenario is not mandatory, butrecommended to preserve the activities of the organization and its "rehabilitation" with less losses. The decision signed by the arbitrator on the introduction of the period of external administration (12-18 months) enters into force immediately, but can be appealed to higher authorities.
The period for such a change of leadership may be extended if the investor meeting agreed on:
- approving changes to the management plan, which provides for a period exceeding the originally established, but not more than the maximum allowed;
- applying to the court to extend the period of external administration to the maximum possible.
Justification of the effectiveness of the implementation of the new guidance from the meeting of creditors is not required. The temporary director must, on the basis of an analysis of the financial condition of the enterprise, restore its profitability. The task of creditors is to identify and approve the candidacy of the head, as well as agree on the potential terms of his work.
Progress and moratorium
The consequences of the external control process are the following events:
- removal of the current director from office: the new director can officially dismiss him or offer to move to another position;
- transfer of powers of the board of directors, meeting of shareholders or other management bodies of an enterprise with debt to an external manager (the right to decide on an increase in the authorized capital remains);
- moratorium (suspension of execution of monetarycircumstances and payments) to meet the requirements of investors.
The last point allows during the external management of the organization to use the amounts intended to pay debts to improve the financial situation of the company. It is not uncommon for unscrupulous managers to declare a fictitious bankruptcy of their organization in order to be able to impose a moratorium, which applies to obligations related to the economic side of the issue.
If the deadlines for payments have already come during the moratorium on monetary obligations, then:
- Fulfillment of obligations under executive documents of property recovery is suspended. The exceptions are the payment of wage arrears to employees, payments under copyright agreements, recovery of property from someone else's illegal possession, compensation for physical or moral damage. The action applies to those that were issued before the introduction of the Foreign Policy Department.
- Fine, forfeit and other financial sanctions for improper performance of financial obligations are not accrued, except for those that arose after the application for declaring the organization bankrupt.
Moratorium does not apply to:
- compulsory payments that appeared after the bankruptcy petition was accepted by the arbitration court;
- claims for the collection of wage arrears, payments to employees under contracts.
Manager
Approval of the newthe head is approved by the arbitration court. The external manager, in comparison with the interim or administrative director, completely replaces the head and receives broad powers in terms of disposing of the property of the “bankrupt” and monitoring his activities. All questions and claims of creditors are sent during the external management of the enterprise to the arbitration judge and the external manager. After verifying the validity of the claims, a ruling is issued to include or refuse to include them in the register of claims subject to immediate execution.
An external manager can independently dispose of the property of the debtor enterprise, but there are transactions that require the consent of the meeting of creditors:
- having an interest (one of the parties is a close relative of the external leader);
- the book value of which is more than 10% of the book value of the organization's assets;
- associated with the issuance of loans, guarantees, guarantees, transfer of debt, assignment of claims, acquisition of shares or shares;
- sale of property subject to collateral;
- involving new monetary obligations.
Deals and agreements previously entered into by the debtor relating to creditors prior to the introduction of external administration are potentially failed agreements. After the organization is declared bankrupt and in the previous 6 months, agreements may be declared invalid (at the request of an external manager or creditor) if this transaction entails a preferredmeeting the requirements of some investors over others.
If in the previous 6 months before the company was declared bankrupt, any founder withdrew from the list of participants and a share in the property was paid to him, then the functions of external management allow the new manager to achieve recognition of such a transaction as invalid, if, in his opinion, this the operation upset the balance of the organization.
Sequence of actions
Within one month of appointment, the outside manager must draw up a management plan and submit it to the meeting of creditors. 15 days before the scheduled date of the meeting, the planned goals and essence of external management, set out on paper, must be sent to the federal executive body that controls the implementation of the unified state. policies in the economy in which the enterprise operates. This authorized governing body gives an opinion to the arbitration court on the plan of further actions and can apply for the transition to the procedure for the financial rehabilitation of the enterprise, without waiting for approval from the meeting of creditors. Also attached is a list of obligations of the debtor and a schedule for repayment of existing debts.
The purpose of external management is to restore the solvency of a bankrupt enterprise by transferring powers to an external manager. The drawn up plan should contain measures that will be aimed at eliminating the signs of bankruptcy, the procedure and conditions for their implementation, the potential maturity of debts and recoverysolvency. It is considered by the meeting of investors, which is organized by the external manager, no later than 2 months from the date of approval of this new management. Notification of creditors takes place in writing, which indicates the date and place of its holding. The approved plan and minutes of the meeting are sent to the arbitration court by the manager within 5 days after the meeting. If such actions are not taken within 4 months from the beginning of the work of external administration, this is the reason for the decision by the arbitration court to declare the enterprise bankrupt and open bankruptcy proceedings.
Measures to restore the solvency of the organization
There is a certain structure of actions aimed at the financial rehabilitation of the enterprise:
- Cessation of unprofitable production activities.
- Partial sale of property (may take place at public auction after inventory and preliminary valuation, the initial price of the property is set by the meeting of creditors based on its market value).
- Change organization profile.
- Collecting receivables.
- Expanding the scope of potential authorized capital through contributions from participants and third parties.
- Assignment of the rights of the bankrupt's claim (implementation takes place by the manager by selling claims at an open auction with the consent of the committee).
- Fulfillment of obligations of a bankrupt by the owner of his property, who may be a unitary enterprise, founder, other participants or third parties.
- Additionalordinary shares of a bankrupt organization (the placement of such shares increases the authorized capital, is carried out only by closed subscription, the term is 3 months, the state registration of the report on the results of the placement is carried out no later than a month before the end date of external management).
- Sale of a bankrupt company (such a measure can be included in the planned structure of external management, affects the sale of part of the property or the entire enterprise, is carried out in the form of an auction, the initial cost is discussed at a meeting of creditors, cannot be lower than the minimum price, but also no more than 20% above the market).
- Other actions aimed at restoring solvency.
Progress Report
After the investor meeting discusses the report of the external manager, one of the decisions is made, which is described in the appeal to the arbitration court:
- extension of external management;
- termination of the current management in connection with the resumption of stable solvency of the enterprise;
- recognition of the company as final bankrupt and opening bankruptcy proceedings;
- dismissing due to satisfaction of all original creditors' claims;
- signing a settlement agreement.
The report of the external manager and the existing dissatisfaction of investors are considered at the court session, which makes its decision.
Internal and external management
This approach to activity can be in real estate.“Internal” is the management of real estate belonging to the enterprise, which is within the framework outlined by its internal regulatory documents. "External" - state regulation of the real estate market.
Internal management subdivided into:
- The level of decision-making on the form of disposal of the object (pledge, purchase, trust management, rent, sale, self-management), based on the goals of the organization. The decision is made only after assessing the cost of objects, potential income, analyzing the market situation, discussing the issues of processing transactions.
- The level of management of a specific property (owned by the organization). The differences will be on the goals of management. The procedure is a set of actions aimed at ensuring the functioning of real estate objects and extracting economic benefits from them (construction, collection of rent, design, reconstruction, payment of utility bills).
External control is implemented by the municipal authorities, such external public administration has the following directions:
- Taxation of real estate objects (setting rates, tax incentives) and the formation of a system for objectively determining the market value of objects.
- The development and control of the real estate market, as a prerequisite for the development of the economy, is carried out through actions to ensure the financing of the real estate market, as well as its legalregulation and protection of property rights through the state. rights registration.
Achieve economic development through the organization of favorable investment conditions and infrastructure development. The above in combination ensures the achievement of financial and economic goals.
Types of government
- Internal is carried out by the executive bodies of the state. authorities in order to organize the system itself, to carry out activities to solve the state. tasks and execution of legal acts.
- External public administration is implemented by similar representatives of the executive branch, which contributes to the implementation of "external" powers that are not included in the structure of the state. administration.
- Intraorganizational state. management is carried out through the executive-administrative bodies of the legislative power (court, prosecutor's office). Such control is governed by administrative law, and some management issues are subject to civil law regulation.
Sale of the state enterprise. destination
In order for the organization to be able to pay off its creditors, it is possible to sell it completely, and if its main activity is aimed at meeting state needs in the field of defense capability and security of the Russian Federation, the process is carried out through open tenders. The purpose of external management is the rehabilitation of the financial condition of the enterprise, therefore the Russian Federation has the right of first refusal to purchase suchenterprises in order to subsequently establish a new management and try to restore its economically beneficial side and bring its profitability to a new level. But if a final decision has been made to sell the institution, the external manager acts as the organizer of the auction and publishes an advertisement for the sale in the local press no later than one month before the auction.
If bids for acquisition were not received 30 days before the auction, then the auction is considered invalid and re-appointed, the cost of the enterprise is reduced by 10%. In the event of a subsequent similar situation of unsuccessful sale, the implementation procedure is discussed at a meeting of creditors, but the new value cannot fall below the minimum market price.
External management is the process of restoring the activities of an enterprise (organization) from an economic point of view, helping to pay debts to creditors, restoring profitability, which is achieved in numerous ways indicated above. Such actions can be called a kind of "lifeline" in case of bankruptcy, which, with the right actions of the manager, can help the enterprise and revive it, or, otherwise, bring it to final bankruptcy.
