D-61476 Kronberg im Taunus
– close to Frankfurt –
Legal Advisory to Managing Directors
Theiselmann & Cie. specializes in providing legal advice solely to managing directors, executive and non-executive board members. Based on our own experience gained as board members and our business activities for top managers – on top of our business expertise, we can show ways to reduce legal risks for our clients while achieving corporate goals.
Our focus is on management duties in the corporate crisis and insolvency, in M&A transactions and capital raisings as well as disputes between corporate bodies. We also accompany and represent our clients in contractual negotiations, corporate law formalities and day-to-day business.
Legal advisory on insolvency filing and payment ban as well as Distressed M&A in Germany
Legal advisory on M&A transactions, debt and equity capital raisings in Germany
Mediation and representation in case of disputes in the management or with shareholders and legal ghostwriting in the background
Employment contracts for Managing Directors, preparation and recording of board meetings and board resolutions, preparation of board presentations, execution of customs matters (MRN, EUR1, certificates of origin) under German law
Legal Advisory in the Corona Crisis
The Covid-19 virus has led many German companies into an immediate crisis. The legislator reacted quickly and defused some crisis obligations. Nevertheless, board members must now act with special care and document the relationship between the Corona pandemic and the corporate crisis if they want to avoid personal liability risks
We check for executives whether the suspension of the insolvency filing duty and the adjusted payment ban due to the Corona pandemic are applicable and document this in court-proof form.
Duty of Care
We give executives a legal opinion whether and under what conditions they are still allowed to do business with customers and suppliers in the Corona crisis without being personally liable.
We analyze for executives which solutions are suitable for financial restructuring in the individual case and implement appropriate legal measures jointly with other advisors, if needed.
As an external corporate secretary, we prepare and attend board meetings and ensure that formal requirements for resolutions are met. We also document the decision-making process and the board resolution.
We create investor presentations and board documents in the corporate design of our clients showing legal optionalities in the Corona crisis. In this respect, clients benefit from our experiences in corporate strategy and investment banking.
For executives we secure internal and external crisis communications from a legal perspective, e.g. with regard to press inquiries or investor conferences by creating Q&A including legally secure statements to stakeholders.
Special Situations in Germany
By when are managing directors still allowed to pay invoices during a corporate crisis?
If illiquidity and/or over-indebtedness has occurred but no insolvency filing is in place yet, managing directors are generally no longer allowed to make payments for the distressed company, i.e. they must not pay invoices anymore. If this so-called payment ban is infringed, the managing director is personally liable for the payments – even if there were no personal advantages and the ultimate objective was only to pay due invoices. An exception to the payment ban applies to transactions which are absolutely necessary for the company’s survival; for each transaction, the decision should be documented in writing. The duty to observe the payment ban cannot be delegated to a single managing director.
When is a German company insolvent?
Under German law there are three insolvency reasons: over-indebtedness, imminent illiquidity and illiquidity. The obligation to file for insolvency does only apply to illiquidity and over-indebtedness. In the event of imminent illiquidity, an insolvency filing may be done with the consent of the shareholders. Only managing directors of corporations (e.g. GmbH or AG) but not partnerships (e.g. GbR, OHG or KG) are obliged to file.
What does "illiquidity" mean under German law?
If a company is unable to fulfill more than 10 per cent of its total due debt, it is already deemed insolvent. In order to determine a potential illiquidity, managing directors must create a so-called “liquidity status”. For this purpose, it is necessary to clarify which claims are deemed to be due. This is sometimes difficult since incoming invoices are not always booked in a timely manner and, moreover, some claims have been long overdue but are not enforced. In addition, it must be clarified with regard to claims of shareholders or shareholders whether these claims are due or should be removed from the liquidity status due to a qualified subordination.
Mere cash-strapped payments, i.e. temporary liquidity shortages of no more than three weeks in case of possible short-term available cash do not lead to illiquidity. However, if it comes to cash-strapped payments frequently, an illiquidity is suspected.
What does "over-indebtedness" mean under German law?
If the assets of a distressed German company no longer cover its existing liabilities, there is a so-called financial over-indebtedness. In this situation, if the continuation of the company is “most likely under the circumstances of the individual case”, no insolvency filing has to be made and the assets can be appraise at going-concern values. The situation is different if there is a so-called negative continuation forecast, i.e. if the likelihood of continuation of the company is less than 50 per cent. In this respect, it depends on whether the company can meet its maturing liabilities at any time in the current financial year and until 31 December of the following financial year. It is checked whether the business concept and the underlying business plan is realistic.
How long can a German managing director wait to file for insolvency?
If illiquidity and/or over-indebtedness of a German company has occurred, managing directors have a maximum of three weeks to file for insolvency. In the meantime, they are obliged to look for solutions (e.g. negotiations with banks or shareholders). If there are no chances from the outset or if potential solutions prove to be unrealistic within the three-weeks period, an immediate filing for insolvency is mandatory. Therefore, managing directors must not always wait three weeks for the insolvency filing, however, they do not necessarily have to file for insolvency directly upon occurrence of illiquidity and/or over-indebtedness.
When does the shareholders' meeting need to be convened during a crisis?
If 50 per cent of the share capital (as set out in the articles of association and the commercial register) is lost, managing directors of a Germany company must convene an extraordinary shareholders’ meeting. The objective is to warn owners that the company is distressed, that dividends are not being paid and that any outstanding deposits are being claimed. For the calculation of the “half” of the share capital, going-concern values are of relevance.
Can managing directors resign in the corporate crisis?
In principle, managing directors without significant shares in the German company are allowed to step down at any time and without justification also in the corporate crisis. However, they may be held personally liable for any damages to the company if this results from the resignation. If the employment contract, which does not automatically end upon resignation unless otherwise stipulated therein, implies an obligation to take over a managerial role, a resignation without good cause may result in personal liability of the resigning managing director. The resignation must be declared in writing to the shareholders’ meeting or the supervisory board and shall apply immediately. Alternatively, the resignation may be declared with effect from the deletion in the commercial register. In contrast, sole managing partners cannot resign in a corporate crisis without appointing a successor.
Are managing directors allowed to make payments to shareholders during a corporate crisis?
During a corporate crisis, managing directors should refrain from payments by the GmbH or AG to its shareholders (e.g. upfront dividends or loans). Because of the payment ban, managing directors are also personally liable for payments to shareholders which consequently result in illiquidity and/or over-indebtedness. This also applies to indirect payments made through third parties such as group companies or strawmen. The duty to observe the payment ban cannot be delegated to a single managing director.
Does a managing director lose all tasks during insolvency proceedings?
Even after insolvency filing, the managing directors remain in office. In any case, they continue to operate in self-administration proceedings and implement their decisions in consultation with the supervisor. They also remain in their function outside self-administration proceedings and have powers in the so-called “insolvency-free area”. They must undertake formally necessary activities, such as registrations with the commercial register or disclosure of financial statements. Even former managing directors are obliged to be available to the insolvency receiver for questions within two years from their departure.
What has changed in terms of the obligation to file for insolvency during the Corona crisis?
In Germany, the obligation to file for insolvency in accordance with Section 15a InsO is suspended at least until 30 September 2020. However, this does not apply if:
– the illiquidity and/or over-indebtedness does not stem from the spread of the SARS-CoV-2 virus (COVID-19 pandemic), or
– if there are no chances of eliminating an existing illiquidity.
If the distressed company was not insolvent on 31 December 2019, it is assumed that the insolvency is due to the effects of the COVID-19 pandemic and that there are chances of eliminating an existing insolvency.
What has changed in terms of the payment ban during the Corona crisis?
Insofar as the insolvency filing duty is suspended due to Covid-19, payments comply with the care of prudent managing director pursuant to Section 64 s.2 GmbHG or Section 92 (2) s.2 AktG if the payments are made “in the proper course of business”, in particular to maintain or resume business operations or to implement a restructuring plan.
What should executives do in the Corona crisis with regard to the insolvency filing obligation and the payment ban?
In the current Corona crisis, executives of pandemic-damaged German companies should prepare a restructuring plan and document the conjunction between the Corona crisis and insolvency, if and when and to what extent state aid has been applied for, or with whom which financing or restructuring solutions have been negotiated, and to what extent state aid is appropriate for corporate restructuring. In addition, it should be documented why payments have been made in the proper course of business in light of insolvency or serve to maintain or resume operations of the distressed company.
Serve & Perform
Our Value Proposition
In order to be able to advise executives and non-executives at the highest level, we specialize in legal implications of company directorships under German law. We analyze every court decision as well as legal publications related to our core areas. This focus combined with practical application ensures highest quality of advice.
We are committed to the success of our clients with maximum performance: permanent and worldwide availability as well as short response times as well as work in real time characterize our legal advice. We always ensure the individual support of clients at partner level — every day and 365 days a year.
We regard ourselves as consultants for decision-makers in the business world and therefore practice a multidisciplinary approach: we incorporate our knowledge, e.g. in accounting, financial modelling, company valuation, equity or debt capacity analysis into our legal advice.
Entrepreneurial & Managerial
In order to provide legal advice to decision-makers in companies, we are convinced that it is helpful to have faced the clients’ challenges on our own. Therefore, we also make use of our experiences from executive roles in the operational business of companies and as entrepreneurs as well as our knowledge of decision-making processes in companies.
As lawyers, we are independent bodies of justice, exclude conflicts of interest from the outset and reject mandates in case of doubt. As a law firm boutique, we are completely free in our decisions and flexible in terms of cooperation with other law firms from various fields and countries.