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Posts Tagged ‘CFO’

The Importance for D & O Liability Insurance for Troubled Companies

Sunday, June 14th, 2009

 

If you are a director, an officer or business owner of a troubled company, you need to be especially careful. You now have two groups to whom you must answer: investors and creditors. As you know, these two groups have conflicting interests. Therefore, if you wrong one group over the other, you increase your chances of the offended party suing you. To keep you out of trouble, you need to know your responsibilities to each group.

 

Your responsibilities to investors

You have the responsibility of exercising care in your governance of the company and loyalty to the investors of the company – even if the only investor is your spouse. This is your fiduciary responsibility Here is what that means:

 

·         act in the best interests of the company and its investors.

·         act in good faith. You must not have any intent of fraud, deceit or misconduct.

·         decide the firm’s strategy.

·         replace top management if they have mismanaged the firm.

·         educate yourself fully about the issues facing the company so you can soundly lead the firm.

 

Your responsibilities to creditors

Under normal circumstance, your loan agreements and seller contracts lay out your only duties to your creditors. This changes when your firm enters the zone of insolvency. When you are in the zone of insolvency, you have the following fiduciary responsibilities to creditors:

 

·         act in the best interests of the creditors.

·         act in good faith and not have any intent of fraud, deceit or misconduct.

·         decide the firm’s strategy.

·         replace top management if they have mismanaged the firm.

·          educate yourself fully about the issues facing the company so you can soundly lead the firm.

 

As you can see by looking at the two sets of fiduciary duties, your responsibilities are the same except you must act in the best interest of both investors and creditors. This is a difficult task. It is the reason your personal liability increases significantly when your firm gets into trouble.

 

Business Judgment Rule

Before receiving my recommendations on how to deal with your increased liability, you must get some information about the Business Judgment Rule. Fiduciary duties do not require the business owners, CEOs, directors or officers to be perfect or mistake free when running the company. Otherwise, there would be D&O lawsuits every time a company had a slight upset or did not grow as much as some “expert” expected.

 

This protection from ordinary mistakes is the Business Judgment Rule. Under it, the business leaders are not liable for poor decisions if they have acted in the following ways:

 

·          without any intent to defraud or deceive

·          with enough information

·          in the best interests of the investors.

·          in the best interests of the creditors if the firm is insolvent or close to insolvent

 

Therefore, if you acted as above, your investors and creditors cannot hold you liable for the firm getting into trouble. Your main concern is to run the firm in the best interests of both the investors and the creditors so neither party sues you.

 

Increase your Director & Officer Liability coverage if your firm is a corporation or LLC. Get as much as you can afford. If the premiums are too expensive for your firm right now, you and your directors and officers should consider paying for the policy out of your own pockets. The peace of mind is worth the money. In addition, ask your insurance agent or broker about exercising the “tail” of the D&O policy. Most D&O policies have extended coverage called the “tail.” This coverage remains in force to cover D&O suits after the firm has shut its doors. Usually, you pay this tail in a lump sum before shutting down the firm or declaring bankruptcy and the coverage lasts three to five years.

 

Be aware that resigning from the board and running away from the firm’s troubles can hurt you. If you are not present, the other directors and officers could blame you for the firm’s troubles. They can name you as the main culprit of the firm’s mismanagement in any lawsuit. By resigning, you also will have no say in any settlements to which the board agrees. Such settlements may affect both your investment in the firm and your personal liability.

Why Negotiate Business Debt?

Monday, March 30th, 2009

Is your business drowning in debt? Are you seriously contemplating bankruptcy? Although attornies often recommend bankruptcy as a way to stop the pain, it is not always the best solution. If you have provided lenders with a personal guarantee, you are still liable and can lose everything you have. No one wants to give up everything they’ve been working for. But there comes a point in time when it gets harder to avoid bankruptcy. You have to protect your assets be it personal or business. These questions are addressed when opting to negotiate and settle your business debt. Avoid bankruptcy and deal with your creditors. Most creditors would prefer to take something rather than risk their debtors entering bankruptcy and having nothing to pay them.

The first step is to let your vendors and creditors know your financial situation as well as the cause of the problems. Being honest and open with them about your situation helps the chances of your problems being solved rather than hiding it with no chance at all to be remedied. Communicate with the people you owe money, explain your problems and they will understand and respect you for your honesty. Your honesty gives them fair chances to get back what you owe them. It makes them more willing to reduce and negotiate your debts down to a level you can afford.

Hard work spells out trust from your suppliers to give you the best deals for your supplies and raw materials. Considerable terms are extended to hardworking businessmen for even suppliers themselves are businessmen who try acquire dependable clients. Suppliers know that it is much easier to keep an existing customer than to acquire a new one. Also, suppliers know that customers will appreciate the suppliers’ patience and remain loyal to them in the future as gratitude for their help. Obtaining favorable payment terms on your outstanding business debts helps keeps more money from flowing out of your business each month, and keeps your business moving until you can turn it around. Negotiate with vendors to reduce debts or suspend payments to them for a certain time until your struggling business comes back to life.

Negotiating business debts is a thing you could master over time but it is worth starting now. Contact your creditors and convince them that by reducing your debt, you will be in better shape to pay them and it will allow you to continue with the business. At the end of the discussions, vendors should believe that you have a good chance to stay in business and will pay them sooner than expected if your business would recover through better cash flow assisted by the easy terms agreed with the creditors.

Negotiation not only yields favorable results, collection calls are also reduced which is to the creditors advantage by minimizing agony of futile collection efforts and saving on resources. Negotiation and reducing business debts is the best alternative for all sides. (askthecfo.com)

Alternative Debt Resolution - The Six Steps

Friday, March 20th, 2009

There are 6 Steps used in Alternative Debt/Dispute Resolution. In this era of lawsuits galore, more and more companies are looking to heal business spats quickly and with less expense by turning to alternative dispute resolution. Below are six steps that professional dispute resolution specialists take when helping disputing parties to resolve their conflicts.

Step 1. Shelving Anger
A successful resolution specialist acts like a neutral third party who can persuade parties to shelve their anger by going beyond egos and hurt feelings to look at the real issues.
Step 2. Finding Common Ground
The second step of a resolution specialist is to help both parties find something they can agree upon. When this happens, parties are able to communicate the issues quicker and ultimately come to a fair settlement.
Step 3. Building Bridges
The best resolution specialists are like marriage counselors. They act as informal referees who make recommendations as opposed to judges who hand down orders.
Step 4. Using Problem−Solving Techniques
People in disputes are more cooperative with each other when they know their position is being communicated in a non−combative, on−aggressive manner. By using consensus−building techniques, more is resolved in less time and with less stress.
Step 5. Communicating With Clarity
When people are emotionally frustrated, it’ s easy not to listen. As a result, issues can be misunderstood. Successful resolution specialists will communicate with clarity their client’ s financial position while giving the other side the opportunity to respond to the facts, as they understand them.
Step 6. Finding Creative Solutions
Dispute resolution creates a compromise that will satisfy both sides. And because it’ s not a court settlement, the results can be fairer and uniquely tailored to suit both parties.


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Interstate Business Solutions provides part-time and interim CFO services, financing assistance and business debt reduction and renegotiation. We help businesses prepare accurate and timely internal financial statements, reduce expenses, optimize gross profits, improve working capital, prepare cash flow projections, improve profits and cash flow, develop or improve banking relationships, develop financial and strategic plans and guide management through exit strategies, reduce business debts for troubled companies and assist with new and existing financing (loans, equity, venture capital, leases, etc.).

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