Transcript Document

T M A Presentation
28 May 2014
Thomas George Nell Senior Business Rescue Practitioner

http://www.youtube.com/watch?v=MhODVYX
DrfE&feature=player_embedded
Video - Finweek
CBR Statistics - From Filing to Presentation of
Business Rescue Plan 2012 – 2013
4.5%
11.5%
7%
Liquidations
{
Plans not adopted
Plans adopted
77%
In Process
Total : 45
CBR Statistics – from adoption of plan to filing of
Substantial implementation report 2012 - 2013
14,6%
Liquidations
53%
32,4%
In Process of
Implementation
Fully Implemented
Forms of
Businesses
that Filed for
Business
Rescue Total 1500
Registered Offices of businesses that filed from 2013
Licences Issued per
Category
Practitioners in Provinces
2% 5%
1%
3%1%
E Cape (8)
Gauteng (86)
21%
KZN (21)
W Cape (33)
North West (5)
54%
13%
Limpopo (2)
Mpumalamga (2)
Free State (3)
Split between Court Applications and
Resolutions 2012 - 2013
Company
resolutions ,
421
450
400
350
300
250
200
150
100
50
Court
Appliactaions ,
46
0
Court Appliactaions
Company resolutions
Section 143 (1) –
Remuneration of Practitioner
- Entitled to charge an amount to the
Company under Supervision, incl. :
- Remuneration
- Expenses of practitioner
Regulation 128
- Prescribed tariff for fees of Business Rescue
Practitioner
- Basic remuneration is to be determined at the
time of appointment, by:
• The Company under supervision
• The Court
Fees may not exceed :
Practitioner
Small Company
JP
R 1250 / hour
R 15625 / day
JP
EP
SP
R 1500 / hour
R 18750 / day
JP
EP
SP
R 2000 / hour
R 25 000 / day
JP
EP
SP
R 2000 / hour
R 25 000 / day
Any company
P.I. < 100
Medium Company
Public Company 500 >
100
Any Company 500 > 100
Large Company
P.I. > 500
State Owned
P.I. > 500
Remuneration
Further Remuneration of
Practitioner
143. Remuneration of practitioner
(1) The practitioner is entitled to charge an amount to the company for
the remuneration and expenses of the practitioner in accordance with the
tariff prescribed in terms of subsection (6).
(2) The practitioner may propose an agreement with the company
providing for
further remuneration, additional to that contemplated in subsection (1),
to be
calculated on the basis of a contingency related to(a) the adoption of a business rescue plan at all, or within a particular
time, or
the inclusion of any particular matter within such a plan; or
(b) the attainment of any particular result or combination of results
relating to
the business rescue proceedings.
(3) Subject to subsection (4), an agreement contemplated in subsection (2)
is final
and binding on the company if it is approved by(a) the holders of a majority of the creditors‟ voting interests, as
determined in
accordance with section 145(4) to (6), present and voting at a meeting
called for the purpose of considering the proposed agreement; and
(b) the holders of a majority of the voting rights attached to any shares of
the
company that entitle the shareholder to a portion of the residual value of
the
company on winding-up, present and voting at a meeting called for the
purpose of considering the proposed agreement.
FEE AGREEMENT
Between:
Joe Spares (Mpumalanga) CC (under supervision), represented by
Joe Soap
And
Peter Johnson (the jointly appointed Business Rescue Practitioner) with
address 32 Charles street, Pretoria (herein after referred to as the Business
Rescue Practitioner).
It is agreed between the parties that Joe Spares (Mpumalanga) CC (under
supervision) will remunerate the Business Rescue Practitioner as follow:
As Chapter 6 of the Companies Act 71 of 2008 does not provide for a
comprehensive schedule regarding other expenses, disbursements and
services rendered by the practitioner, it is agreed that the following tariffs
will be applicable to enable a logical debiting system. It is further agreed
that a unit system will be allocated to certain tasks to facilitate its proper
calculation.
The following units are applicable for the following tasks:
BUSINESS RESCUE PRACTITIONER PETER JOHNSON:
Hourly tariff: R 1, 250.00 (including VAT) based on the Public Interest
Score of 37.
CALCULATION OF EXPENSES AND DISBURSEMENTS (ADMIN):
*VAT will be charged on the items as listed below.
2.1)
Telephone calls: 2 units (minimum) for the first 2 minutes or
part thereof as well as subsequent minutes.
An hour is thus divided in 30 units.
2.2)
Emails: 1 unit (minimum).
2.3)
Faxes: 3 units (minimum) per page.
2.4)
Letters drafted and sent: 5 units (minimum).
2.5)
Perusal of letters: 5 units (minimum).
2.6)
Travelling will be charged at R4.00 per km
2.7)
Hourly tariff of R 650.00 (PLUS VAT) will be levied for any
assistance or work done in regard to the
management and day to
day operations of the entity under Business Rescue, should an ad hoc
outside manager or accountant be employed this fee will not be levied
should such person be appointed on a full time basis in such an event
the person will be paid by the company directly.
2.8)
Hourly tariff of R550.00 will be levied for any assistance or work
done by a Professional Assistant/Attorney (PLUS VAT).
2.9)
Hourly tariff of R350.00 will be levied for any assistance or work
done by a senior Clerk (PLUS VAT)
(Such person should have at
least 10 years administration experience and an applicable 3 year degree).
2.10)
A minimum of 4 (four) hours will be charged for each Statutory
meeting as referred to in the Companies Act 71 of 2008.
2.11)
1 Unit = 1 min = R20.83 calculated as follows: R1, 250.00 / 60
minutes = R 20.83 per unit.
2.12)
Section 143 (2) of the Companies Act 71 of 2008 “Remuneration
of Practitioner”: “The Practitioner may propose an agreement with the Company
providing for further remuneration, additional to that
contemplated in
subsection (1), to be calculated on the basis of a contingency related to –
The adoption of a business rescue plan at all, or within a particular time, or the
inclusion
of any particular matter within such a
plan; or
The attainment of any particular result or combination of results relating to the
business
rescue proceedings.”
2.12.1) If the business is sold as a going concern or if the assets are sold,
the Business Rescue Practitioner
would be entitled to 2.5% on the
selling price of movables, 1.5% on immovable and 2.5% if the business is
sold
as a going concern;
2.12.2) The Business Rescue Practitioner will be entitled to 2.5% on all
discounts negotiated for and on behalf of
the entity. This will be
deemed as a success fee as contemplated in Section 143 (2) of the
Companies
Act 71 of 2008.
All payments are made in good faith and are non-refundable except
under circumstances as set out in Section 143(4) of Act 71 of 2008. Should
the Business Rescue Process be set aside by the court or the Business
Rescue Practitioner accept that the process is a nullity, for reasons as set
out in Section 129 or 130 of the Companies Act 71 of 2008,
aforementioned fee will still be payable for any “bona fide” work done
by the Business Rescue Practitioner in terms of this agreement.
It is noted that the administration may be outsourced by the Business
Rescue Practitioner.
Signed at _____________________________ on this _____ day of
__________________________ 2014.
Who ? – S 138
To become a rescue Practitioner?
- member in Good Standing of :
• Legal background
• Accounting background
• Business Management
background
Must be licensed by the CIPC
138. Qualifications of practitioners
Accreditation by Commission of legal, accounting or
business management profession or has been
(b)
licensed as such by the Commission in terms of
subsection (2);
(2) For the purposes of subsection (1) (a) (ii), the
Commission may license any qualified person to
practice in terms of this Chapter and may suspend
or withdraw any such license in the prescribed
manner.
Guidelines:
(c) is not subject to an order of probation in
terms of section 162 (d) would not be disqualified
from acting as a director of the company in terms
of section 69 (8);
does not have any other relationship with the
company such as would lead a reasonable and
informed third party to conclude that the
integrity, impartiality or objectivity of that person
is compromised by that relationship; and(f) is not
related to a person who has a relationship
contemplated in paragraph (d).
LICENSING
Licensing of Business Rescue Practitioner
Licensed by the Commission, or
The Commission after receiving an application must either:
1. Issue a license as applied for in Form CoR 126.1
2. Issue a Conditional license on terms that are reasonable
3. Refuse the license
Categories of Practitioners:
1.Senior – 10 years or more
2.Experienced – 5 years or more
3.Junior – Less than 5 years
Joint appointments are allowed.
How can a plan be
adopted?
- To Analyse the legal position of all relevant roll players, and to
communicate it to them in a manner which will allow them to
appreciate their position.
- To offer them an acceptable solution in a manner that balances the
rights and interests off all relevant stakeholders through effective
communication. – S 7 (k)