Foreign experience of structural transformations and the possibility of its use in Russia. Ideal holding: preliminary design Possible goals for changing the business ownership structure

Private equity funds (hereinafter referred to as investors) are interested in purchasing shares of companies with good operating and financial performance, a transparent ownership structure, and minimal legal and tax risks. The decisive aspects when making an investment decision are the commercial and financial characteristics of the business, however, a suboptimal business ownership structure can significantly delay the process of attracting an investor, and in some cases even reduce the indicative price of the business.

The article presents typical business structuring options for the Russian market, which are not optimal from the point of view of investors, and also gives practical recommendations regarding possible areas of pre-sale preparation.

If the company is owned by individuals

Individuals who are the founders of a business may own shares or interests in a Russian company that is an investment target (hereinafter referred to as the target company). This ownership structure is transparent and may be characterized by the absence of legal risks. However, the presence of shareholders individuals has a number of disadvantages. Firstly, when selling shares (shares) of the target company, the parties to the share purchase and sale agreement will be individuals, which makes it difficult for the investor to recover certain amounts from the sellers (for example, due to significant violations of the terms of the transaction by the sellers). Secondly, sellers - individuals who are Russian residents, will have to pay tax on income from the sale of shares of the target company at a rate of 13%, when shares of the company are sold by the original shareholders, the amount of tax deductions may be equal to the minimum established amount of the authorized capital paid when creating a company, and the amount of personal income tax payable by individual shareholders may be approximately 13% of market value the block of shares being sold.

Failure to pay or incomplete payment of personal income tax by an individual seller of shares may become grounds for challenging the sale and purchase transaction of shares by the tax authorities and lead to the seizure of shares from the investor.

According to current legislation, it is possible to exempt from personal income tax income from the sale of shares (shares) of a Russian company, provided that on the date of sale (redemption) of such shares (participation interests) they were continuously owned by the resident by right of ownership or other property right for more than five years. However, taking into account the restrictions on the application of the exemption in terms of the period of ownership of shares, as well as its extension only to shares (shares) acquired after January 1, 2011, practical use the said release is not possible in the near future.

Considering the above, a business ownership structure that includes a Russian or foreign holding company may be more attractive to an investor than direct individual ownership of shares in the target company.

RECOMMENDATIONS: During pre-investment preparation, the possibility of transitioning from direct ownership of shares by individuals in the target company to a target structure involving a Russian or foreign holding company should be considered.

Merging Segments

In some cases Russian companies concentrate several areas of business within one legal entity. The business purpose of this structuring option may be to protect against a hostile takeover of a high-margin business line, as well as to reduce tax liabilities (for income tax and value added tax) by summing up financial results highly profitable and unprofitable activities.

Current legislation requires the disclosure of information by segments in financial statements Russian companies issuing publicly offered securities, while other Russian organizations (except credit institutions) have the right to refuse to disclose information on segments. In this regard, in practice, many organizations decide not to disclose information and not to generate financial indicators by segment.

However, only a highly profitable (and/or rapidly growing) business segment may be of interest to an investor, while purchasing shares of a company that also engages in non-core and/or low-income activities may be unacceptable. The lack of high-quality information about the financial indicators of the target segment may require significant costs at the stage of conducting pre-investment financial research and even become a reason for the investor to refuse the transaction.

Therefore, attracting an investor is usually preceded by the transfer of the target business segment to a separate legal entity (for example, through reorganization in the form of a spin-off or transfer of part of the business to a new legal entity). Such a restructuring can be accomplished without incurring additional tax liabilities, but may require significant time and administrative costs.

RECOMMENDATIONS: if it is intended to attract investments in relation to a separate segment, the preparation of high-quality financial information on the target segment and/or the pre-sale separation of the target segment into a separate target company can significantly increase the chances of successfully attracting an investor.

Functional specialization

A number of Russian holdings are characterized by the specialization of companies, when some of them carry out operational (trading, production) activities, while others own significant assets (intellectual property, real estate, production facilities, etc.). Basic business purpose Such separation is to protect assets from commercial risks, including claims from buyers, as well as from raider takeovers.

However, from the investor’s point of view, the artificial distribution of a business into several legal entities entails the need to acquire shares of not one, but several target companies. In addition, functional specialization entails the need to establish relationships between group companies regarding the use of assets and redistribution Money, which may lead to transfer pricing risks.

In this regard, an investor may be interested in consolidating the business being the object of investment at the level of one Russian legal entity (Russian operating company) or consolidating the ownership of functionally specialized companies at the level of a single holding company.

In particular, the consolidation of a group of companies with functional specialization can be resolved by merging the companies of the seller's group with one of the companies, which, after completion of the reorganization, will become an object of investment. Merger in itself does not entail the emergence of additional tax obligations and leads to the arithmetic addition of the tax balances of the merging companies at the level of the merging company. However, when one legal entity merges with another, the legal successor of the merged legal entity in terms of payment of taxes is recognized as the legal entity that merged it. That is, all historical tax risks of the acquired organization are transferred to the acquiring organization. Accordingly, if such historical risks are significant, accession cannot be considered the optimal direction of pre-sale preparation. Therefore, before making a decision on merger, you should, at a minimum, assess the size and nature of the historical tax risks of the reorganized companies.

In development strategy Russian Federation Until 2010, the priority problem is the modernization of the economy. In the past decade Russian reforms Various goals were put forward as priorities: denationalization and privatization; financial stabilization, restructuring, market transformation; formation of market infrastructure; the economic growth. Their essence, significance and feasibility are different, but the relationship is obvious: denationalization and privatization are a necessary moment of market transformations; financial stabilization requires an efficient market infrastructure; economic growth must be based on effective enterprise restructuring.

Changing socio-economic systems, which include enterprises various forms property, or individual blocks thereof, occurs continuously. These changes vary in their depth (shifts in the quantitative characteristics of certain parameters of the system within the framework of its previous quality or transition to its other qualitative state), in intensity over time and in nature (different rates and speed of changes, evolutionary or revolutionary type), in coverage of the elements of the system (changes concern its individual links or the entire system as a whole, i.e. they are system-wide), in terms of the relationship and role of objective and subjective factors. These changes are an objective process, but it is stimulated and reinforced by subjective activities determined by politics.

In Russian economic practice, the concepts of “reform” and “restructuring” have recently been widely used, although many researchers or practitioners try to interpret these terms in their own way. As a result, confusion often occurs various concepts or a one-sided interpretation is used.

Formally, a reform can be called an innovation of any content, usually of a progressive nature.

Reform(reform, reform policy) - a change in the operating principles of the enterprise, contributing to improved management, increased production efficiency and competitiveness of products, labor productivity, reduced production costs, improved financial and economic results. The main mechanism of the reform is the orientation of the enterprise's activities towards the market. In this regard, many enterprises are doing everything possible to optimally and flexibly respond to market needs and their changes. Often this requires, first of all, changes in the organizational structure, i.e. reforming the enterprise management system.

The concept of “reforming enterprises” is defined in Decree of the Government of the Russian Federation dated October 30, 1997 No. 1373, Order of the Ministry of Economy of Russia dated October 1, 1997 No. 188 and annexes to them. Reform is defined in them as a change in the operating principles of enterprises aimed at their restructuring. The “Model (Approximate) Enterprise Reform Program” talks about achieving the reform goal through enterprise restructuring. It is noted that the main directions of enterprise reform are the following:

– identification and elimination of violated rights of shareholders (for joint-stock companies);

– inventory of property and restructuring of the property complex of the enterprise;

– market valuation of the enterprise’s assets;

– analysis of the enterprise’s position in the market, its financial and economic activities and the efficiency of enterprise management;

– development of an enterprise development strategy;

– training and retraining of personnel.

From these documents it follows that the restructuring process concerns only the property complex of the enterprise.

Proposed by I.I. Mazur and V.D. Shapiro's approach to transformations in an enterprise as changes become more complex is the most reasonable, as it is based on the logic of processes and aspects of the objects of change. The essence of their point of view on the concepts of “reform” and “restructuring” of an enterprise is to consider the processes of change in enterprises in the order of their complexity: reorganization - reforming - restructuring. It follows that restructuring includes reform and reorganization.

Reorganization– restructuring, reorganization of a legal entity (legal entities), which means the termination of the activities of a specific legal entity (entities) without liquidation of affairs and property with subsequent state registration new legal entity.

Since the structure of the system ensures the preservation of its basic properties during various internal and external changes, the main way (method) of reforming the system is to change its structures - restructuring.

Restructuring should be understood as a comprehensive transformation of an enterprise, which is associated with a change in its inherent structural components - production, information and organizational structure. At the same time, changes are possible in a number of significant structures: property, business processes, technological processes, assets and liabilities, personnel, etc. In other words, restructuring may include improving the structure and functions of management, overcoming the backlog in technical and technological aspects of activity, improving financial and economic policies and, on this basis, increasing production efficiency, product competitiveness, increasing labor productivity, reducing production costs, and improving financial and economic results. activities. A characteristic feature of restructuring is the complexity of the reforms being carried out. As a result of restructuring, the state of the enterprise changes and it moves to new operating conditions that correspond to the changed conditions external environment.

Enterprise restructuring includes the following:

1) carrying out a set of organizational, technical, financial measures that allow the enterprise to restore its competitiveness;

2) complex and interrelated changes in the structures that ensure the functioning of the enterprise as a whole;

3) any changes in production, capital structure or ownership that are not part of the company's daily business cycle, often resulting in a change in the status of the enterprise;

4) provision effective use production resources, leading to an increase in business value.

Enterprise status– the legal status of an enterprise in property circulation, if it is considered as one of the types of organizational and legal form of a legal entity.

Restructuring refers to a change in the organizational and business structure of an enterprise (assets, property, finance, management, personnel, etc.), as well as the corresponding mechanisms for interaction between departments and their management systems.

An example would be private measures for financial restructuring (for example, debt restructuring) or organizational restructuring (changes in legal forms, organizational structure, reduction in the number of hierarchical levels of management, changes in the areas of subordination, coordination, information exchange), improvement of individual enterprise management systems. Often, restructuring involves changing the structure of share capital and the property complex.

Significant organizational changes as part of the restructuring process include transformations production elements, introduction of new divisions and units, liquidation of low-productive structural units, separation of individual production facilities into independent enterprises, mergers of divisions, acquisition of other enterprises, etc.

Restructuring allows you to harmoniously combine all aspects of the enterprise’s activities: comprehensive optimization of the enterprise’s functioning system in accordance with the requirements of the external environment and the developed strategy for its development leads to a fundamental improvement in management, increased efficiency and competitiveness of production and manufactured products based on modern approaches to management, including quality management methodology, business process reengineering, information technologies and systems, etc.

Restructuring relates to the enterprise as a business (economic entity), while reform is more traditionally associated with the enterprise as an economic entity. Reorganization, in turn, is most often understood in a narrower sense of the word - as a structural transformation of an enterprise or group of enterprises.

The reform contains mainly production and economic aspects: changing the operating principles of the enterprise helps to improve management, increase production efficiency and competitiveness of products, as well as labor productivity, reduce production costs, and improve financial and economic performance results.

The concept of “enterprise reform” as a complex of transformations is illustrated by the proposal proposed by M.D. Stork's classification of types of transformations at an enterprise depending on the criteria (Table 2).

table 2

Classification of transformations at the enterprise

The concept of “enterprise reform” is comprehensive, covering numerous areas of economic activity (components, options) and its transformations, namely: restructuring, reorganization (spin-off, division, merger), change in the form of ownership and production technology, etc. In this regard, today it is necessary to clarify all these concepts and structure them in unified system, since they characterize the entire reform process for the transition to new level development Russian enterprises.

The depth and scale of the problems of enterprises may vary and require different approaches to restructuring: the enterprise may either experience an acute shortage of cash and pressure from creditors and be on the verge of bankruptcy, or it may be unprofitable for some time or simply significantly less efficient than with other companies in a certain industry. Both the approach to the restructuring process and the range of available design solutions largely depend on the state of the company. As a result, three main types of restructuring can be distinguished:

Sanitation restructuring – work to revive troubled companies in order to increase their value in the interests of all stakeholders.

Adaptive restructuring is a set of actions, technologies and tools that allow an enterprise to adapt in a short time to market requirements.

Forward restructuring is a comprehensive transformation of an enterprise, which is associated with a change in its inherent structural components - production, information and organizational structures that contribute to increasing the value of the business in the future.

The successful development of a company leads, for many reasons, to the complexity of various aspects of its business. As a rule, the organizational structure of the parent company becomes more complex, branches and subsidiaries are created or acquired. As a result, the company is transformed into a holding company, and this leads, in particular, to an increase and complexity of its internal document flow. The positive dynamics of sales of products, goods and services is accompanied by an increase in the number of counterparties and an increase in the content of external information flows. The development of the company's business is also accompanied by changes in strategic goals and objectives. The listed factors, along with some others, lead to changes in priorities in business management as it grows.

Changing priorities in business management

If for control small business it is necessary to organize the maintenance of accounting and tax accounting, provide for the formation of regulated reporting, as well as maintaining operational records of current activities in the required sections with the possibility of obtaining the necessary data for adoption management decisions, then for a company with a holding structure this is no longer enough.

The goals of rapidly growing companies often include the development of new territorial market segments, the release of new types of products, business diversification, etc. Achieving goals by a growing holding with an extensive structure involves solving problems of formalizing the strategy of a group of enterprises, creating flexible system management of the holding, to attract investments and requires the availability of consolidated corporate financial statements.

Corporate financial reporting allows the owners of the holding, creditors, investors, auditors and other external and internal users to obtain a comprehensive picture of the state of the business of a group of companies. It is also used to make informed and reasoned management decisions. In this case, the formation of corporate reporting must occur within an acceptable time frame and be carried out with acceptable costs for its preparation.

At the same time, there are a number of circumstances that prevent the timely receipt of adequate corporate reporting. Different economic entities of the holding, as a rule, apply different accounting policies. At the same time, bringing all entities to a single accounting policy is not always economically feasible, and in some cases, for example, for enterprises under the jurisdiction of foreign states, it is simply impossible. In addition, different enterprises included in the holding may use different systems for automation of accounting and management.

As a result, as practice shows, the task of preparing corporate financial statements requires the availability of skilled workers and external consultants, as well as new modern automation tools.

In addition to the preparation of corporate reporting, an urgent task for Russian holdings is also the introduction of such modern management and information technologies as budgeting and a balanced scorecard. The use of budgeting allows you to distribute the resources of a business entity over time in an optimal way. The use of a balanced scorecard allows, using simple and understandable key performance indicators KPI (Key Performance Indicator), to transform the strategic goals of the holding into an operational plan for the activities of individual enterprises, divisions, as well as the main employees of the holding and to monitor their achievement.

The intention of the owners of the holding to receive investments necessary for the implementation of long-term projects, or, for example, to increase the capitalization of the company with a view to its further sale, in some cases leads them to the decision to make an initial public offering of the company's shares on the stock exchange - to the decision to enter an IPO (Initial public offering ).

Preparing for an IPO necessarily implies ensuring business transparency and publicity of the company. As part of solving this problem, it may be necessary to restructure the company in order to transition from the existing structure to a legally transparent and economically sound one. The conditions for preparing for an IPO include the formation of consolidated financial statements of the holding in accordance with Russian and international standards (IFRS), as well as its audit, the introduction of modern corporate management standards and other requirements.

To solve many of the problems described above, the 1C company offers the software product 1C: Consolidation 8. This software product allows you to automate the collection and centralized storage of reports from business units included in the holding, consolidating management and accounting reporting. With its help, you can implement budget management for both individual companies and groups of companies. The program allows you to transform reporting generated according to one standard into reporting according to other standards - RAS, IFRS, US GAAP, etc.

Holding structure, consolidation perimeters

Before starting the consolidation process, it is necessary to determine the subordination structure of the business units included in the holding, and thus obtain an idea of ​​the organizational and economic relationships between them. At the next stage, you need to set the consolidation perimeter, in other words, determine the set of business units for which consolidated reporting will be generated.

The structure of the holding can be different and depends on the specifics of the activity, as well as on the methods of solving management problems. For example, in the simplest case, the holding structure may consist of a parent company and several subsidiaries subordinate to it. This structure ensures transparency of ownership and relative ease of control by owners over all enterprises of the holding.

In holding with over complex structure subsidiaries may be linked by mutual ownership relationships. Many of them may also include minority shareholders. These circumstances complicate reporting consolidation.

In addition, business interests may require generalization of data for organizations segmented according to various criteria - industry, regional, etc. The list of organizations included in the consolidation perimeter may also depend on the users for whom consolidated reporting is prepared.

Business development interests may require the use of a flexible management structure that differs from the organizational structure. In this case, there may be a need to consolidate reporting not only of legal entities, but also of branches, separate divisions and financial responsibility centers (FRC). In this case, the CFD can be various types– investment centers, income centers, cost centers and profit centers.

Software"1C: Consolidation 8" is designed taking into account the requirements of modern business, and can be used to consolidate reporting in all the cases described above.

The program provides for the development of reporting forms for business units - organizations within the holding, branches, Central Federal District, etc. "1C: Consolidation 8" allows you to describe various aspects of organizational financial structure groups - the composition of business units, the hierarchical structure of subordination, the consolidation methods applied to business units, as well as the composition of owners and their shares of ownership of the business units of the group.

The perimeters of consolidation are determined - group, subholding, industry or geographic segment. You can support multiple consolidation perimeters in one infobase. This allows you to perform consolidation in stages, generate reporting by segments, etc. The shares of full ownership of each organizational unit of the perimeter on the part of the owners of the consolidation perimeter are calculated, taking into account such complex shares of ownership as indirect and counter.

Depending on the actual degree of control over individual enterprises by the group, the program uses various consolidation methods - “Full Consolidation”, “Equity Method” and “Proportional Consolidation”.

Perimeters are being versioned. This allows you to store the history of acquisitions and disposals of companies within the holding. When consolidating the Income Statement, acquisitions and disposals of the reporting period are taken into account. In this case, the values ​​of the indicators as of the date of acquisition or disposal are recorded or, accordingly, excluded from the calculation.

If the holding enterprises use different accounting policies, then different processing rules are applied to the reports received from them. These rules are defined for individual organizational units or for perimeters and contain algorithms for transformation and consolidation of reporting.

Business Performance Management

The dynamic development of Russian holdings requires a high-quality management system. Modern management practice uses many concepts and approaches aimed at increasing efficiency and ensuring business growth and development. One such approach is budgeting.

Today budgeting is management tool control and planning of resources, expressed in quantifiable indicators, designed to achieve the strategic goals of the company.

The introduction of budgeting involves the development of a budget model and regulations for maintaining budgets. The basis for building the budget process is the financial structure. It is important to note that the financial structure does not replicate the organizational one. Centers of financial responsibility can be both individual enterprises and aggregated business units that unite enterprises according to a certain characteristic.

The program "1C: Consolidation 8" allows you to create a financial structure based on the company's development strategy. It is possible to enter budgets in the form of tables, i.e. in a way that is close and understandable to non-financial participants in the budget process. Import of data in different formats from various automated systems is supported.

To achieve the strategic goals of owners, an approach that involves decomposing the main goal is often used. An example of a possible decomposition of the main goal “Net profit growth by 30%” is shown in the figure.

Decomposition of the goal "Net profit growth by 30%"

During the decomposition process, for each goal of the hierarchical tree of goals, a key performance indicator to be strived for is indicated in numerical form.

The methodological budgeting model included in the version of the program "1C: Consolidation 8 PROF" provides examples of key performance indicators (KPIs), formulas for their calculation and business processes that allow you to automatically monitor their achievement. The composition of KPIs given in the budget model can be changed in accordance with the strategic goals of the company.

A holding is an association of legal entities interconnected by relations of economic subordination (usually realized through ownership relations). Due to such subordination, the entire structure as a whole is manageable, but at the same time it is possible to ensure the relative independence of its individual elements, necessary for the economically efficient operation of the system. Any holding, as a rule, consists of standard elements: various types of legal entities that are in one or another relationship with each other (namely, in ownership and contractual relationships). The choice of organizational and legal forms of such legal entities is generally not rich. However, the main differences between them are not in the organizational and legal form, but in the functional purpose of one or another element of the scheme. Perhaps the main functions of the divisions of a typical holding company include the following (for definiteness, let’s assume that we're talking about about the production holding):

1. Production.
2. Marketing.
3. Sales of finished products.
4. Supply of raw materials and materials.
5. Financing of holding divisions.
6. Ownership of shares (stakes) in other holding organizations.
7. Ownership of intellectual property (and accumulation of royalties).
8. Management of other holding organizations.
9. Providing services to other holding organizations (legal, accounting, provision of personnel, etc.).

Naturally, various functions can, in principle, be combined in one element. The structure of the holding in the corporate sense (what legal entities it consists of) should be distinguished from its organizational structure in the managerial sense, as well as from the financial structure. In this latter sense, the elementary cells of a holding are not legal entities, but so-called responsibility centers.

Despite the variety of existing goals and methods for achieving them, the corporate and organizational structures of all holdings are largely similar. Moreover, one can even imagine some ideal “standard project” of a holding company, which has a more or less universal character. This doesn't mean that this project suitable for absolutely everyone, but it can become a starting point, a basis for “adjusting” it to a specific situation.

Let's try to depict the large-scale structure of such an “ideal holding”. We will consider not a purely Russian, but an international holding, consisting not only of Russian, but also foreign organizations (see Fig. 1).

Ideal holding: ownership structure

The characteristic features of our ideal holding are the following. Firstly, the functional specialization of the holding elements. A separate company is created for each task (production, trade, ownership, etc.). This approach is determined by both control considerations (it is logical to formalize each major center of responsibility as a separate legal entity, thereby bringing the corporate and management schemes of the holding into conformity) and tax considerations (tax optimization often involves choosing the organizational and legal form of the company, its taxation system, and sometimes even the country of its incorporation, depending on the functional purpose of the company), as well as asset protection requirements (in the event of possible bankruptcy of one of the holding organizations, the rest will not suffer).

Secondly, the tree-like ownership structure. This means that the ownership scheme has the form of a tree (upside down, if you follow our figure): from each node of the scheme several “branches” can extend, ending with nodes, from which, in turn, new “branches” can “grow”. It is the tree structure that seems optimal from the point of view of ensuring end-to-end control of the owners over all structures of the holding. It most closely complies with the principles of transparency of ownership (which is necessary for investment attractiveness) and ensures a natural settlement of the interests of all co-owners of the holding (at the level of the statutory documents of the parent holding company).

As for the foreign part of the holding, in principle, its structure can be very diverse, including, for example, foreign production companies, etc. However, for holdings with Russian roots, it is more typical to transfer only certain auxiliary functions abroad. In particular, companies are often created abroad to ensure the purchase of goods (raw materials) and the sale of the holding’s products. The country of incorporation of foreign divisions of the holding can be chosen either randomly or based on tax considerations. The foreign holding company is the final node of the entire holding structure; the elements following it (intermediate instruments of ownership) are no longer divisions of the holding itself, but only indirectly exercise ownership of the shares of its parent company. In this case, control over the parent holding company is exercised by the beneficiaries through mechanisms of control over their individual ownership instruments.

Ideal holding: structure of financial flows

The diagram (see Fig. 2) shows both current financial transactions (purchase of raw materials, sales of products, payment of royalties, etc.) and capital movements (provision of loans and contributions to the authorized capital).

The basis of the financial well-being of the holding is the funds received from buyers of its products. Funds are transferred to the accounts of a trade organization (or trade organizations) of the holding, which purchases products sold from the production organizations of the holding; Moreover, settlements for such internal supplies can be carried out at transfer prices, due to which the holding’s profit is accumulated in a trading organization, from where it is transferred to the parent holding company for further use. Russian trade organizations transfer profits to a Russian holding company, foreign ones - to a foreign holding company.

Similarly, the purchase of raw materials and supplies is carried out in our scheme through separate purchasing companies, which also distribute their profits in favor of the parent holding company. Service and management companies send their profits to her. Industrial organizations distribute their profits in favor of their participants (core subholdings), from which they go to the parent Russian holding company. Russian enterprises pay for the services of specialized service companies holding, and also make license payments for the use of intellectual property (royalties). The company that owns the intellectual property transfers its profits to the parent foreign holding company, which uses the funds received to finance the Russian part of the holding.

Due to tax considerations, it is advisable for the holding company to make direct capital contributions, as well as replenishment of funds, etc. itself, and financing in the form of loans through a separate financing organization (or a composite structure of several companies). Finally, the final chord is the distribution by the parent holding company of the remaining profit at its disposal (all or part) in the form of dividends to its shareholders. If the beneficiary owns the shares through a bridge, he has the choice of taking the money into his own accounts or temporarily leaving it in the bridge's accounts, which will allow him to minimize taxation.

Ideal holding: tax structure

Issues of taxation and tax optimization of holding operations are extremely complex. We will provide only a schematic representation of the main tax payments of an international holding company (see Fig. 3). Russian holding organizations pay all Russian taxes in the usual manner: profit tax, VAT, property tax, unified social tax, etc. The issue of optimizing the taxation of the Russian part of the holding should be considered in conjunction with the general optimization of financial flows, and it is necessary to take into account some specific provisions of the tax legislation of the Russian Federation and the position of the tax authorities. Thus, the transfer pricing method can, in principle, serve not only for the redistribution of finances within the holding, as mentioned above, but also for tax optimization purposes. However, one should keep in mind the provisions of Art. 40 of the Tax Code of the Russian Federation, limiting the tax benefits of transfer pricing, as well as the concept of an “unfair taxpayer” and the sad fate of YUKOS.

When transferring funds abroad, the law in certain cases provides for taxation of income of foreign legal entities at the source of payment. This means that the tax is withheld and transferred to the budget by the Russian organization that pays the income. In addition, royalties transferred abroad are subject to VAT. The amount of VAT is also withheld from the payment amount by the Russian organization, which is then entitled to the corresponding tax deduction. Withholding tax rates can be reduced by a tax agreement, if Russia has one, with the country of incorporation of the foreign company receiving the income. (VAT is not subject to the provisions of such tax treaties.)

Russia has concluded one of the most favorable tax agreements with Cyprus, which not least explains the fact that Cyprus has become a traditional offshore base Russian business. This means that structures such as an ultimate holding company, a financier, or an intellectual property company are often created in Cyprus. However, other options are also used: the Netherlands, Luxembourg, Denmark, etc. At the same time trading operations(including payments for internal supplies within the holding) are not subject to withholding tax in Russia. Therefore, firms from “classic” offshore jurisdictions (British Virgin Islands, etc.) can be used as trading and purchasing companies. At the same time, one should also keep in mind the “anti-transfer” provisions of the Tax Code of the Russian Federation (Article 40) and customs legislation.

Further, foreign companies themselves are subject to taxation according to the laws of the country of their registration. For “classic” offshore companies this taxation is zero, but for other foreign elements of the scheme the tax issue deserves the most careful consideration. Note that in many European jurisdictions the law provides holding companies with certain benefits, namely, tax exemption for dividends and capital gains they receive. This explains the possible use of such companies as the head element of a holding. But for companies that own intellectual property or engage in financing, no benefits are usually provided. In this regard, the issue of optimizing their taxation is acute, for which composite structures are widely used. That is, the rectangle in the diagram may represent not one legal entity, but one or another composite structure: for example, a company in the Netherlands Antilles may own intellectual property, but licenses for the use of intellectual property will be issued through a specially created Dutch company (such a scheme is more rational with tax point of view).

When distributing dividends foreign companies among its shareholders in the country of registration of the company, in the same way as in Russia, withholding tax on dividends can be levied. Thus, dividends distributed by a Swiss holding company to its shareholders - offshore companies - are subject to withholding tax at a rate of 35%. Finally, the beneficiaries of the holding who receive income from its structures are subject to taxation on their income under the laws of the country of which they are residents. Thus, in Russia, personal income tax is levied, as is known, at a rate of 13%, and if this income represents dividends - 9%.

As we can see, there are many opportunities for international tax planning, i.e., legal minimization of taxation of the foreign part of the holding.

Due to the right choice jurisdictions for registering foreign companies, redistributing financial flows between them, as well as using composite structures can, as a rule, significantly reduce the resulting tax losses.

Ideal holding: organizational (managerial) structure

As can be seen in Fig. 4, the control structure largely replicates the ownership structure, although not completely. In principle, the ideology of building the corporate structure of the holding was precisely that it correspond to the maximum extent to the management structure. This makes it possible to naturally regulate relations between management at various levels on the basis of corporate legislation. Ultimately, the entire created structure is controlled by the beneficiaries of the holding. It should be noted that the more “multi-story” the structure of the holding is, the more indirect control becomes and the more powers actually go to the managers (Russian part) of the holding. In particular, if there are minority shareholders on the “top floor,” then their ability to influence the substantive part of the business is less, the more “floors” the holding has.

Finalization of the project

The considered standard holding project needs further refinement depending on the tasks set in a particular case. In fact, this is precisely the job of restructuring consultants. First of all, you should decide on the corporate structure of the holding, i.e., throw out the elements that are unnecessary in this case (for example, a financing company is not needed) or add the missing ones (for example, another “floor” of subholding companies is needed). It is also necessary to select the optimal organizational and legal forms of the legal entities being created, and for foreign companies - the country of registration. At this stage, considerations of investment transparency and asset protection play an important role.

Next, you should plan the absolute value of financial flows, based on the specifics of the business, as well as tax considerations. There is quite a significant freedom of maneuver here: for example, the holding’s profits can be redistributed both through dividends and through the transfer pricing mechanism. IN general view This problem is a very complex optimization problem, but in specific situations it often has more or less obvious solutions.

Finally, the most important part of finalizing the holding project is the creation of its organizational (managerial) diagram. If the large-scale structure depicted in our figure is more or less universal, then the development of a “microstructure” of management is a purely individual task, solved in each case separately, based on specific conditions and requirements.

The task of the founders of the holding (or their consultants) is to, by varying free parameters (relative amounts of financial flows, forms of legal entities, provisions of their statutory documents, etc.), achieve maximum compliance of the entire structure with the requirements stated for it (integrity of control , tax optimization, etc.).

Let us note the significant differences between the tasks solved when “designing” the Russian and foreign parts of the holding. If for the Russian part the key considerations are, as a rule, the integrity of control, optimization of finances and investment transparency, then in the foreign part the considerations of formalizing relations of ownership and protection of assets, as well as tax considerations, usually come to the fore.

Conclusion

In conclusion, we emphasize once again that the considered “project” of the holding is not completely ideal, but combines various “types of ideality”. That is, it contains tools designed to solve various problems. If in your case a particular task is missing, having a tool for solving it may be useless or even harmful for solving other problems. Thus, instruments that accumulate profits in foreign structures reduce the investment attractiveness of the Russian part of the holding. Consequently, the project under consideration should be treated purely creatively, as a matter of thought, and not dogma. Having made this reservation, we, however, return to the idea that the considered draft project is in many ways universal and represents a healthy basis for starting work on creating an international holding company. Bringing the project to the stage technical documentation(statutory documents of holding divisions, contract templates, etc.) are recommended to be entrusted to specialists.

References

1. Shitkina I.S. "Holdings. Legal and managerial aspects." - M.: Gorodets-izdat, 2003.
2. Psareva N.Yu. "Holding relationships: theoretical and methodological aspects." — M.: Publishing house " Higher education and science", 2003.
3. Budylin S.L. "Holdings in Russia: legal and tax status" - "College", 2004, No. 8.
4. Budylin S.L. "Holdings in Russia: problems and solutions" - "College", 2004, No. 9.
5. Budylin S.L. "Transfer pricing and Article 40 of the Tax Code of the Russian Federation" - "Taxes and Taxation", 2005, No. 1.
6. Budylin S.L. “Good faith and dishonesty of the taxpayer” - “Tax disputes: theory and practice”, 2004, No. 10.

Chapter 11

Restructuring of an enterprise based on an assessment of market value.

Market transformations are opening up a new perspective for Russian business, but at the same time it is becoming clear that many enterprises have little chance of surviving under the pressure of competition and in new economic conditions without significant reorganization. The economy has inherited a structure in which resources (capital, work force, earth and entrepreneurial skills) are underutilized in large industrial and agricultural enterprises.

The restructuring process can be defined as ensuring the efficient use of productive resources, leading to an increase in business value.

The main goal of restructuring is to search for sources of development of an enterprise (business) with the help of internal and external factors. Internal factors are based on the development of operational, investment and financial strategies for creating value through own and borrowed sources of financing; external - on the reorganization of activities and structure of the enterprise.

The strategic goal is to increase the value of share capital through the efficient use of resources.

11.1 Strategies for managing enterprise value

Market research suggests that there is a strong relationship between cash flow and company value.

The net profit indicator does not correlate with the market value of the enterprise as consistently as the cash flow indicator, since the former does not take into account:

Amount of investment in fixed assets;

Own values working capital;

The financing needs of the enterprise;

Business and financial risks that are specific to a given enterprise.

The discounted cash flow method is based on the simple premise that a particular investment generates additional value if the return it generates exceeds the return on an investment with a similar level of risk. In other words, at a given level of profit, an enterprise with more high level return on investment will require less additional investment and will have higher cash flow and higher value.

Cost management in general requires a special approach from the manager. It should focus on long-term cash flows rather than short-term changes in earnings per share. The approach should be impartial, focused only on increasing value. An enterprise must be considered based on whether it generates income in excess of the cost of attracting its capital or not.

Managing cash flow and enterprise value is primarily about creating new value. The latter involves first identifying specific factors that determine changes in value, then developing strategies to increase value based on them, and then the consistent, targeted implementation of these strategies.

The enterprise value creation process can be divided into four key stages:

First step - assessment of the enterprise “as is”: based on data on the current state and current production and financial plans of the enterprise management. The discounted cash flow method is used for valuation;

second phase - in-depth financial analysis of the enterprise, identification of factors that “drive value” within the enterprise, development and implementation of strategies for increasing value based on the impact on certain factors;

third stage - taking advantage of organizational restructuring opportunities, such as sale production units, purchase of companies, merger, creation of a joint venture, liquidation of a division, etc.;

fourth stage -financial restructuring, which means making decisions regarding debt levels, increasing equity capital, converting debt into equity.

The enterprise is assessed “as is” using the discounted cash flow method.

We will pay special attention to the second stage - creating additional value within the enterprise by influencing the factors that drive value.

Factors driving value are individual variables in the discounted cash flow model that characterize certain aspects of the enterprise's activities. With a quantitative change in one or another variable, the value of the cash flow and, accordingly, the value change.

TO the most important factors, driving the cost include:

1. Time factor.

2. Sales volumes.

3. Cost of products sold.

4. The ratio of fixed and variable costs.

5.Gross profit margin.

6. Own working capital.

7.Fixed assets.

8. The ratio of equity and borrowed funds in the capital structure of the enterprise.

9.Cost of raising capital.

Seven factors directly affect the amount of cash flow, the eighth and ninth - the discount rate.

The impact on certain factors (cost management) is carried out in accordance with specific enterprise development strategies. There are two main approaches used: cost leadership and differentiation.

The first approach is primarily to strictly control costs and thereby maximize production efficiency; the second is to concentrate the enterprise’s efforts on the production and sale of products that do not have serious competing analogues.

Operational Strategies The following cost factors are considered:

The range of products or services produced;

Pricing;

Selection of markets;

Cost efficiency;

Sales system;

Quality of customer service.

In the first approach (cost leadership), the following techniques are optimal:

Share reduction fixed costs by saving on administrative and overhead costs;

Optimizing relationships with suppliers for additional cost savings;

Increasing your market share to achieve economies of scale for each type of activity;

Ensuring, through all of the above, competitive prices for products sold.

The second approach (differentiation) involves mainly using the potential for increasing prices and thereby gross profit margins in those market segments where there is a tangible advantage over competitors.

Investment Strategies provide analysis:

Inventory levels;

Collection of accounts receivable;

Accounts payable management;

Expansion of production capacity;

Capital investment planning;

Sales of assets.

Minimize your cash balance;

Incentivize debtors to reduce average repayment terms
debt;

Minimize the level of inventory, but without compromising the smooth execution of customer orders;

Save on the use of fixed assets (for example, by renting machinery and equipment rather than buying them);

Sell ​​excess unused assets.

Link accounts receivable management to price factors;

Seek the most from suppliers favorable conditions repayment of accounts payable;

Invest in specialty assets needed for differentiation.

Financial Strategies Both approaches are focused on:

Creation of an optimal capital structure;

Selection of the cheapest methods of financing debt and equity capital;

Maximum reduction of business risk factors.

Consistent implementation of one or another version of strategies at all three levels leads to a maximum increase in cash flow and, as a consequence, the value of the enterprise.

11.2. Corporate restructuring

External development of the enterprise is based on the purchase (sale) of assets, divisions, mergers and acquisitions, as well as types of conservation activities corporate control. The strategic goal is to increase the value of share capital by changing the structure of assets; accumulation of funds in the main areas of business development and maintaining corporate control.

A restructuring opportunity arises when there is a value gap between the value that the company currently has (current value) and the potential value that can be achieved if a number of circumstances change.

Cost gap - the difference between the current value of the enterprise under existing conditions and the current value of the enterprise after restructuring:

NPV C = r,

Where NPV C - net present value of the restructuring effect;

D(PN)n - additional profit from restructuring;

P - period of time after restructuring;

(EE)p - saving production costs and additional profits due to diversification of production;

(I )p - additional investments for restructuring;

(T)p - increase (savings) of tax payments;

r - current value coefficient.

As a basic model for calculating the value of an enterprise for restructuring purposes, the discounted cash flow method is used, since this method is the only one that allows taking into account future changes in the cash flows of the enterprise.

When evaluating a proposed restructuring plan, it is necessary to forecast the after-tax net cash flows associated with the company's ongoing operations, without taking into account the financial costs of the reorganization. In this case, restructuring can be considered as an investment option with initial costs and expected future profits.

Corporate restructuring involves changes in the capital or ownership structure that are not related to the company's operating (business) cycle and are based on the use of external capital growth factors.

In Russia, reorganization joint stock company can be carried out in the form of merger, accession, division, separation and transformation (in accordance with the Law “On Joint Stock Companies”, 1995).

What reasons necessitate the search for sources of external factors for the development of an enterprise?

The first and obvious reason is the potential inherent in the existing business, which was previously defined as a cost gap. Many enterprises, actively using internal growth strategies to maximize the implementation of their plans, as well as maintain the company as an operating one, strive to attract external growth factors. This direction of the restructuring process is called the “strategic direction”.

Types of activities in the strategic direction of restructuring include: expansion (merger, accession); reduction (division, selection); transformation of share capital (Figure 1).

Rice. 1. Areas of business restructuring (reorganization)

With strategic direction the goal extensions is to increase the value of share capital due to:

Acquisitions of existing enterprises (it is easier to acquire control over an existing enterprise than to create a new one);

Obtaining managerial, technological, and production benefits in the event of a merger of different companies (the complementary effect, when the system fills in the missing elements);

Possible effect of diversification and reduction of overall risk when merging companies with different profiles of activity;

Competitive potential as a result of strengthening the position of the merged company in the market;

A synergistic (systemic) effect that occurs when the properties of the system as a whole exceed the simple sum of the properties of its individual elements.

Merger societies, the emergence of a new company is recognized by transferring to it all the rights and obligations of two or more companies with the termination of the activities of the latter. The companies participating in the merger enter into a merger agreement, which defines the procedure and conditions of the merger, as well as the procedure for converting shares of each company into shares and (or) other securities of the new company. The issue of reorganizing the company in the form of a merger is submitted for decision general meeting shareholders of companies participating in the merger, the Board of Directors of the newly emerging company is elected.

By joining of a company, the termination of the activities of one or more companies with the transfer of all rights and obligations to another company is recognized. The companies carrying out the merger enter into an agreement in which they determine the procedure and conditions for the merger, as well as the procedure for converting shares of the company being merged. The issue of reorganization in the form of merger and approval is submitted to the decision of the general meeting of shareholders. All rights and obligations of the acquired company are transferred to the acquiring company.

In world practice, considerable experience has been accumulated in the implementation and evaluation of merger (accession) transactions. These transactions are carried out under the control of the Antimonopoly Committee and must satisfy the following conditions:

The exchange involves common stock on both sides;

Contingent payments are prohibited;

The company participating in the transaction must have at least two years of experience as an independent entity;

The acquired company must not dispose of a significant portion of the assets of the acquired company within two years;

To make a decision, the consent of, as a rule, at least 2/3 of the shareholders is required.

Instead of a merger (accession), a company can resort to purchasing shares of the company of interest and gain control over it; shares can be purchased gradually without causing stock prices to rise and without shareholder consent.

Holding company (holding) is an enterprise whose assets include controlling stakes in another enterprise, and a subsidiary, regardless of the size of its shares owned by the holding company, cannot own shares of the holding company in any form.

The advantage of a holding company is that it allows you to gain control over another company with less investment than a merger. In addition, shares can be purchased gradually, without requiring the consent of shareholders and without provoking the information effect of the merger. By piling up holding companies, it is possible to use the effect of financial leverage in relation to controlled assets and profits up to a certain limit, when it is difficult to manage an extensive company and dispersal of funds occurs.

From a legal perspective, the parent company owns the shares of the subsidiary, does not own the assets of the subsidiary, and is generally not liable for the obligations of the subsidiary, although it may provide guarantees for them.

Dependent A company is considered to be one whose activities are controlled by the main company; the share of the capital of the main company ranges from 20 to 50%. This circumstance allows you to have a significant influence on decisions made in the issuing company.

Purpose reductions is the choice of the strategic direction of the company's development with the mobilization of all possible internal reserves and the attraction of external sources of growth.

Division of a joint stock company, the termination of the company is recognized with the transfer of all its rights and obligations to newly created companies. The board of directors of the reorganized form of separation the company submits for decision to the general meeting of shareholders the issue of reorganizing the company in the form of division, the procedure and conditions for this reorganization and the procedure for converting shares of the reorganized company into shares and (or) other securities of the created companies. When a company is divided, all its rights and obligations are transferred to two or more newly created companies in accordance with the separation balance sheet.

By highlighting of a company, the creation of one or more companies is recognized with the transfer to them of part of the rights and obligations of the reorganized company without the termination of the latter. The board of directors of the company being reorganized in the form of a spin-off shall submit for decision to the general meeting of shareholders the issue of reorganizing the company in the form of a spin-off, the procedure and conditions for the spin-off, the creation of a new company, the possibility of converting shares of the company into shares and (or) other securities of the spin-off company and the procedure such conversion, approval of the separation balance sheet. When separating from one or more companies, a part of the rights and obligations of the company reorganized in the form of separation is transferred to each of them in accordance with the separation balance sheet.

At transformation company into a limited liability company or into a production cooperative, all rights and obligations of the reorganized company are transferred to the newly emerged legal entity in accordance with the transfer act.

The second reason for searching for factors of external development of an enterprise is the reorganization of insolvent, bankrupt or enterprises that have encountered serious problems.

Insolvency (bankruptcy) of an enterprise is considered to occur after recognition of the fact of insolvency arbitration court or after an official announcement of it by the debtor enterprise during its voluntary liquidation.

When reorganizing an enterprise in the event of insolvency (bankruptcy), in accordance with Russian legislation, the following procedures may be applied to the debtor:

Reorganization (external management of the debtor’s property, reorganization);

Liquidation (forced liquidation of a debtor enterprise by decision of an arbitration court, voluntary liquidation of an insolvent enterprise under the control of creditors);

Settlement agreement.

The main task of this direction of restructuring is to preserve the enterprise as an operating one.

In the case of a restructuring direction that prevents the threat of takeover, or preserves ownership and control, only companies with the potential for a “value gap” are attractive for takeover.

A company that is being taken over has at its disposal a wide range of ways to protect itself from attacks on its independence.

System for protecting the interests of managers and shareholders aims to ensure that the barriers erected to the takeover of enterprises ensure the employment of management personnel and guarantee the rights of shareholders.

Many companies enter into management contracts with their management staff. They provide high remuneration for the work of managers. These contracts are also known as “golden parachute”. Their high cost increases the price of the company and can act as a deterrent to takeover.

The condition of a qualified majority when voting on a merger (75-80%) means that any changes to the charter are approved by a large number of votes. Instead of the usual majority required to decide other matters, a merger situation may require a higher percentage of votes to approve the deal.

Share repurchase program is an offer for a company to buy back its shares at a premium that can be paid out of the company's share capital.

Company transformation into a private one can be carried out through the purchase of shares, which means a change in the ownership structure. A large number of tools are used for this. The most common are cash payments to former shareholders and company mergers. open type with a private corporation. Privatization can be carried out through the repurchase of shares using a loan, i.e. a third party, and sometimes a fourth, takes part in the transaction. With any leveraged share buyback, the company faces two types of risk. The first is commercial risk (it may happen that the company will not develop according to the previously established plan and the cash flows required to service the debt will be less than predicted). The second type of risk is associated with changes in interest rates (usually a loan is provided on a floating rate basis, and the volume of payments on it changes along with rate fluctuations, therefore, rising interest rates can significantly worsen the company’s position or even lead to its collapse).

As a rule, management companies act as initiators of buyouts with the aim of maintaining ownership and control, as well as the possible acquisition of a company or division.

11.3. Estimation of enterprise value during restructuring

Such an assessment involves determining the compatibility of the merging firms, including:

Analysis of strengths and weaknesses participants in the transaction;

Forecasting the probability of bankruptcy;

Analysis of operational (production) and financial risks;

Assessing the potential for changes in net cash flows;

Preliminary assessment of the cost of the reorganized enterprise.

Reorganization costs can be viewed as an investment option: there are start-up costs and a profit (revenue stream) is expected in the future. Whether a firm spends cash or shares, it must strive to achieve optimal capital allocation and ensure long-term shareholder wealth.

When evaluating a proposed reorganization project, it is necessary to make a forecast of the future cash flows expected to be received after the completion of the transaction.

When calculating cash flows, all synergistic effects must be taken into account, since it is important to provide for the marginal impact of the reorganization.

Synergy (rp. synergeia - cooperation, commonwealth) - a reaction to the combined effect of two or more organisms, characterized by the fact that this effect exceeds the effect exerted by each component separately

Synergistic effect - the excess of the value of the merged companies after the merger compared to the total value of the companies before the merger, or the added value of the merger (2 + 2 = 5).

When selling part of the assets (divestments), a reverse synergy effect may occur: 4-2 = 3. The assets being sold may be of interest to another company, and as a result, it is ready to pay a high price for them.

Synergy can manifest itself in two directions: direct and indirect benefits (Figure 2).

Fig.2. Structure of the synergistic effect

Direct benefit - increase net assets cash flows of reorganized companies. Direct benefit analysis involves three steps:

Estimation of enterprise value based on projected cash flows before reorganization;

Estimating the value of the merged company based on cash flows after the reorganization;

Calculation of added value (all calculations are carried out based on the discounted cash flow model).

The added value of the merger is generated through operational, managerial and financial synergies.

Operational synergy - savings on operating costs by combining marketing, accounting, and sales services. In addition, the merger can lead to strengthening the company’s position in the market, obtaining technological know-how, trademark, which helps not only to reduce costs, but also to differentiate products. In addition to cost savings and product differentiation, economies of scale are achieved (the ability to perform a larger volume of work on the same production facilities, which ultimately reduces the average cost per unit of output).

Managerial synergy - savings due to creation new system management. The merger of enterprises can be carried out through horizontal and vertical integration, as well as through the creation of a conglomerate.

The purpose of the merger is to create a more efficient management system. Poorly managed companies with unrealized value potential are often targeted for acquisition. In this case, the enterprise has two development options: improving the quality of management without reorganization or creating a new management structure for the association. The first option is difficult to implement without changing management personnel; the second option, as a rule, is based on strengthening the management structure of an efficiently operating company.

Financial synergy - savings due to changes in sources of financing, cost of financing and other benefits. The fact of a merger of companies can cause an information effect, after which the value of shares increases (at the same time, real economic transformations have not yet been carried out). A merger (accession) can increase interest in the company from potential investors and provide additional sources of financing. An increase in the share price (even a fictitious one, as a result of the information effect) can increase the company's reliability in the eyes of creditors, which will indirectly affect both the structure and cost of debt. This type synergy does not lead to an increase in cash flows, but to a reduction in investment risk from the point of view of external users. Reorganization (especially conversion) may also result in tax advantages.

Assessing the effectiveness of the reorganization may be easier than assessing a new investment project, since existing enterprises are merged.

Forecasts of sales volumes and costs, as a rule, are based on the results of previous years, therefore, they are more accurate.

Indirect benefit - an increase in the market value of the shares of the merged company as a result of increasing their attractiveness for a potential investor. The information effect of a merger, combined with the listed types of synergies, can cause an increase in the market value of shares or a change in the P/E multiplier (the ratio between price and profit). Since the goal financial management of a joint-stock company is to increase the welfare of shareholders, therefore, increasing earnings per share; let’s consider this aspect in more detail.

Example. Company X is considering the possibility of merging with company U. The characteristics of the companies are presented in Table 1 (data are given in arbitrary units).

Table 1 - Indicators financial activities companies X and Y.

The companies participating in the merger determine the procedure for converting the shares of each company into shares and (or) other securities of the new company based on the exchange ratio:

According to the example, the market price of the company's shares X equal to 20, company Y - 11.7, the exchange ratio will be equal to 0.585 (11.7: 20).

Company X must exchange 0.585 of its shares from company Y for 1 share of company Y. However, such exchange conditions may not be of interest to the shareholders of company Y. Let’s say the shareholders of company Y agree to the exchange conditions based on the market price of shares of company Y equal to 12. In this case, for each share of company Y must transfer 0.6 shares of the company X , which requires issuing an additional 900 ordinary shares of the company X.

Financial indicators X+Y companies after the merger will be as follows:

Assuming earnings of the merging companies remained unchanged, overall earnings per share increased as a result of the combination. However, the shareholders of Company Y received 0.6 shares of the company X therefore, they can count on the corresponding share of profit (0.6 2.2) = 1.32, which is inferior to the original value of profit before the merger (1.67). The P/E multiple under the terms of the deal was equal to 7.18 (12: 1.67), which exceeds the initial value (7). The 7.18:7 ratio, despite the decline in earnings per share, may in the long term indicate a possible increase in earnings per share after the merger (Figure 3).

Rice. 3. Expected earnings per share before and after the merger (indirect benefit)

Decrease (erosion) in earnings per share for company shareholders X will occur if the P/E ratio for company Y's shares exceeds the original P/E ratio for company shares X.

Possible consequences restructuring on return on equity capital are calculated using the following parameters:

Change in earnings per share based on the exchange ratio;

Changes in the P/E multiplier as an indicator of possible short-term prospects;

Size of merging companies: Typically, a larger company will have a higher P/E multiple, therefore, up to a certain limit (market exchange price), the result of the merger will be higher total profit per share.

The greater the value of the P/E multiplier of the acquiring company compared to the same indicator of the acquired company and the difference in the volume of profits received, the greater the increase in the P/E multiplier of the acquiring company as a result of the merger.

Taking a short-term view, many mergers will be dilutive to earnings per share and will be considered underperforming. However, dilution may be offset if the difference in the earnings growth rates of the two companies is significant and the price paid at the higher P/E multiple is considered a multi-year investment.

conclusions

The process of enterprise restructuring is objectively necessary in a dynamically developing economy.

The economic meaning of restructuring can be defined as ensuring the efficient use of production resources, leading to an increase in business value. The criterion for the effectiveness of the ongoing transformations is the change in business value. The basic model for calculating the value of an enterprise for restructuring purposes is the discounted cash flow method.

Factors that increase business value can be divided into internal and external.

Internal value creation strategies are based on an analysis of the sources of the enterprise's cash flow as a result of operating, investment and financial activities.

External value creation strategies shape three areas of restructuring:

Strategic reorganization;

Reorganization of enterprises in case of insolvency (bankruptcy);

Reorganization to prevent the threat of takeover.

Estimating the value of an enterprise for the purpose of restructuring involves an “as is” assessment based on data on the current state of the enterprise and an assessment of the proposed restructuring project based on projected cash flows, taking into account the synergistic effect.

Restoring the organization's solvency

The effective development of market relations is impossible without bankruptcy, since the threat of bankruptcy is as effective an incentive for an entrepreneur as the opportunity to maximize their profits. Entrepreneurial art largely consists of the ability to develop a business development strategy that would allow achieving the desired results without exposing your business to unnecessary risks, including the risks of bankruptcy.

However, entrepreneurship does not always lead to success; sometimes an enterprise finds itself in a difficult financial situation, overcoming which requires not only the mobilization of all internal resources of the enterprise, but also the search for external sources of financing.

Overcoming the financial crisis of an enterprise is a difficult task. In Russian conditions, its complexity objectively increases due to general economic instability.

Bankruptcy is primarily an economic problem, but it is solved within a strictly defined legal framework. Therefore, solving the problem of financial recovery of an enterprise should be based on knowledge of the features of the legal regulation of insolvency (bankruptcy).

When studying issues related to bankruptcy procedures and financial recovery of enterprises, and also taking into account the fact that in Russia a conflict between a debtor who is unable to fulfill his obligations and his creditors can be resolved both in court and out of court, one should pay the necessary attention attention to the following legal acts:

Civil Code of the Russian Federation;

Federal Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ;

Federal Law “On Insolvency (Bankruptcy)” dated January 8, 1998 No. 6-FZ (with amendments and additional amendments);

Law of the Russian Federation “On the insolvency (bankruptcy) of enterprises” dated November 19, 1992 No. 3929-1;

Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions” dated February 25, 1999 No. 40-FZ (with amendments and additional amendments);

Federal Law “On the Peculiarities of Insolvency (Bankruptcy) of Natural Monopolies in the Fuel and Energy Complex” dated June 24, 1999 No. 122-FZ.

11.4. Judicial and extrajudicial financial recovery procedures

Measures for the financial recovery of an enterprise can be taken both in judicial insolvency (bankruptcy) procedures and in extrajudicial procedures.

In the event that a case of insolvency (bankruptcy) has been initiated against a debtor organization in an arbitration court, the debtor has the opportunity to try to restore its solvency. According to the Federal Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ (hereinafter referred to as the Bankruptcy Law), an arbitration court can introduce one of two procedures aimed at restoring the debtor’s solvency: either a financial rehabilitation procedure or an external management.

In addition to rehabilitation procedures for the debtor, the Bankruptcy Law also provides for procedures for monitoring, bankruptcy proceedings and settlement agreement.

Financial recovery is a bankruptcy procedure applied to the debtor in order to restore his solvency and repay the debt in accordance with the repayment schedule.

The financial recovery procedure is introduced by the arbitration court for a period of no more than two years if there is a petition from the founders (participants) of the debtor or the owner of the property of the debtor - a unitary enterprise or third parties to the first meeting of the debtor's creditors to introduce financial recovery. During financial recovery, the debtor's management bodies act with the restrictions provided for by the Bankruptcy Law. This procedure is based on the implementation financial recovery plan And debt repayment schedule.

External administration is a bankruptcy procedure applied to the debtor in order to restore his solvency.

At external management powers to manage the debtor are transferred to an external manager. This procedure is primarily aimed at mobilizing the debtor’s internal resources, introducing strict intra-company control and accounting, especially over cash flows. However, if the debtor’s internal resources are insufficient to restore its solvency, it is possible to attract financial resources from third parties (investors).

One of the important features of external management is the development by external managers external management plan, which must be approved and approved by the meeting of the debtor's creditors. The external management plan does not have a strictly regulated form, however, it must contain comprehensive justification for the possibility of achieving the goals of external management within the time frame established by the arbitration court (in the general case - no more than 18 months, this period can be extended by no more than 6 months). - restoration of the debtor organization's solvency. In addition, external control is determined by the introduction moratorium to fulfill the creditors' claims to the debtor for the entire period of external management. It should also be noted that measures aimed at restoring the debtor’s solvency are carried out under the supervision of his creditors.

In addition to judicial procedures aimed at improving the health of the debtor organization in order to prevent its liquidation, there is wide range opportunities for financial recovery of the debtor in extrajudicial procedures. At the same time, the role of creditors in some cases can be as significant as in judicial procedures. Nevertheless, the initiative in carrying out measures aimed at restoring and strengthening the solvency of an enterprise, as a rule, comes from the enterprise itself or its owner.

The Bankruptcy Law provides for measures to prevent the bankruptcy of organizations. The founders (participants) of the debtor - a legal entity, the owner of the property of the debtor - a unitary enterprise, federal executive authorities, executive authorities of constituent entities of the Russian Federation, as well as authorities local government are obliged to take timely measures to prevent bankruptcy of organizations. As a measure to prevent bankruptcy, the debtor may be provided with financial assistance in an amount sufficient to repay monetary obligations and mandatory payments and restore the debtor's solvency. This measure is a procedure pre-trial rehabilitation.

Pre-trial rehabilitation - measures to restore the debtor's solvency, taken by the owner of the debtor's property - a unitary enterprise, the founders (participants) of the debtor, the debtor's creditors and other persons in order to prevent bankruptcy.

11.5. Financial recovery plan and debt repayment schedule

Financial recovery from an economic point of view is a restructuring of the debtor organization. The necessary elements of restructuring are: settlements with the debtor's creditors, the deadline for fulfilling their claims for monetary obligations and for the payment of mandatory payments occurred on the date of introduction of financial rehabilitation, only in accordance with the approved debt repayment schedule; implementation of measures in the debtor’s financial recovery plan aimed at accumulating the debtor’s funds necessary to make payments.

It should also be taken into account that the introduction of a financial recovery procedure determines a number of restrictions on the actions of the debtor, for example, such as:

Claims of creditors for monetary obligations and for the payment of obligatory payments, the due date of which occurred on the date of introduction of financial recovery, can be presented to the debtor only in compliance with the procedure established by the Bankruptcy Law;

Canceled earlier Taken measures to secure creditors' claims;

Seizures on the debtor's property and other restrictions on the debtor regarding the disposal of property belonging to him can be imposed exclusively within the framework of bankruptcy proceedings;

The execution of enforcement documents on property penalties is suspended, with the exception of documents issued on the basis of decisions that entered into legal force before the date of introduction of financial recovery on: collection of wage arrears; payment of royalties under copyright agreements; reclaiming property from someone else’s illegal possession; compensation for harm caused to life or health, and moral damage;

The following are prohibited: satisfying the demands of the debtor's founder (participant) for the allocation of a share (share) in the debtor's property in connection with the withdrawal of its founders (participants); repurchase by the debtor of placed shares or payment actual value shares (share);

Payment of dividends and other payments on equity securities is prohibited;

It is not allowed to terminate the debtor's monetary obligations by offsetting a counterclaim of the same type if this violates the order of satisfaction of creditors' claims established by the Bankruptcy Law;

Penalties (fines, penalties), interest payable and other financial sanctions are not accrued for non-fulfillment or improper fulfillment of monetary obligations and mandatory payments that arose before the date of introduction of financial recovery.

According to the provisions of the Bankruptcy Law, interest is accrued on the amount of creditors' claims for monetary obligations and for the payment of obligatory payments to be satisfied in accordance with the debt repayment schedule in the manner and in the amounts provided for in paragraph 2 of Art. 95 of the Law.

Penalties (fines, penalties), amounts of damages caused in the form of lost profits, which the debtor is obliged to pay to creditors in the amounts that existed on the date of introduction of financial recovery, are subject to repayment during financial recovery according to the debt repayment schedule after satisfying all other claims of creditors.

In the financial recovery procedure, the debtor, in accordance with the Bankruptcy Law, does not have the right, without the consent of the meeting of creditors (committee of creditors), to enter into transactions or several interrelated transactions in which he has an interest, or they:

Are associated with the acquisition, alienation or possibility of alienation, directly or indirectly, of the debtor’s property, the book value of which is more than 5% of the book value of the debtor’s assets as of the last reporting date preceding the date of the transaction;

Result in the issuance of loans (credits), the issuance of sureties and guarantees, the establishment trust management the debtor's property.

In addition, the debtor has no right, without the consent of the meeting of creditors (creditor committee) and the person or persons who provided security, to make a decision on its reorganization (merger, accession, division, spin-off, transformation).

If the amount of the debtor's monetary obligations arising after the introduction of financial rehabilitation is more than 20% of the amount of creditors' claims included in the register of creditors' claims, transactions entailing the emergence of new obligations of the debtor can be carried out exclusively with the consent of the meeting of creditors (committee of creditors) .

In accordance with the Bankruptcy Law, the debtor does not have the right, without the consent of the administrative manager, to enter into transactions or several related transactions that:

Result in an increase in the debtor's accounts payable by more than 5% of the amount of creditors' claims included in the register of creditors' claims as of the date of introduction of financial rehabilitation;

Associated with the acquisition, alienation or possibility of alienation directly or indirectly of the debtor’s property, with the exception of the sale of property that is a finished product (work, services) manufactured or sold by the debtor in the process of economic activity;

Result in the assignment of rights of claim, transfer of debt;

Result in obtaining loans (credits).

Financial recovery plan is developed by the founders (participants) of the debtor, the owner of the property of the debtor-unitary enterprise and approved by the meeting of creditors. The plan must provide ways for the debtor to obtain the funds necessary to satisfy the claims of creditors in accordance with the debt repayment schedule during financial recovery. This plan is an economic justification for the debt repayment schedule.

Debt repayment schedule should be an integral part of your financial recovery plan. According to the Bankruptcy Law, the debt repayment schedule is signed by a person authorized to do so by the founders (participants) of the debtor, the owner of the property of the debtor-unitary enterprise, and from the date of approval of the schedule by the arbitration court, a unilateral obligation of the debtor arises to repay the debtor's debt to creditors within the time limits established by the schedule. This schedule as a document has an independent and very important meaning when implementing the financial recovery procedure.

The debtor's fulfillment of obligations in accordance with the debt repayment schedule can be secured by a pledge (mortgage), a bank guarantee, a state or municipal guarantee, a surety, as well as by other means that do not contradict the Bankruptcy Law. Fulfillment by the debtor of obligations under the debt repayment schedule can't be secured by retention, deposit or penalty. As a subject to ensure the debtor’s fulfillment of obligations under the debt repayment schedule can not act as property and property rights owned by the debtor by right of ownership or right of economic management.

The person or persons who provided security for the debtor's fulfillment of obligations in accordance with the debt repayment schedule are liable for the debtor's failure to fulfill these obligations within the limits of the value of the property and property rights provided as security for the debtor's fulfillment of obligations.

If there is security for the debtor to fulfill the debtor's obligations in accordance with the debt repayment schedule, the schedule is also signed by the persons who provided such security.

The Bankruptcy Law establishes a procedure for repaying creditors' claims in the financial recovery procedure, reflected in the debt repayment schedule.

The schedule should include:

Repayment of all claims of creditors included in the register of creditors' claims no later than 1 month. before the expiration date of the financial recovery period, as well as repayment of claims of first and second priority creditors no later than 6 months. from the date of introduction of financial recovery;

Proportional repayment of creditors' claims in the order determined by Art. 134 of the Bankruptcy Law.

In addition, it should be noted that the debt repayment schedule for mandatory payments collected in accordance with the legislation on taxes and fees is established in accordance with the requirements of the legislation on taxes and fees.

The debtor has the right to fulfill the schedule ahead of schedule.

In addition to those discussed, the Bankruptcy Law does not establish any other requirements for the form and content of the financial recovery plan.

Thus, a financial recovery plan should be developed based on the purpose of the financial recovery procedure - restoring the debtor’s solvency, as well as taking into account the restrictions and requirements specified in the Bankruptcy Law.

It is advisable to begin developing a financial recovery plan with an in-depth analysis financial condition enterprises. It is advisable that the lookback period be two to three years. The main purpose of this analysis is to identify external and internal reasons that led to the deterioration of the financial position of the enterprise. Based on the analysis and conclusions drawn, it is necessary to outline the main ways to restore the solvency of the enterprise by mobilizing internal resources, and if they are insufficient, by attracting borrowed resources.

A financial recovery plan, like any other plan for an organization’s activities, must be developed based on the leading principles of planning:

Validity of goals and objectives;

Systematicity;

Scientific;

Continuity;

Balance of the plan;

Directiveness.

The financial recovery plan is drawn up for a period of up to two years and represents a comprehensive program of production, financial and economic activities of the debtor. It may include traditional sections developed at the enterprise during short-term and medium-term planning: marketing, production program, technical development and organization of production, increasing the economic efficiency of production, logistics, labor and personnel, cost, profit and profitability of production, financial plan, etc. However, the main goal of the financial recovery plan is to develop measures to ensure revenue funds within the time frame and in the amounts necessary to satisfy the claims of the debtor’s creditors in accordance with the debt repayment schedule.

If the debtor fails to fulfill the debt repayment schedule, the Bankruptcy Law provides for the fulfillment of these obligations by persons who provide security for the debtor's fulfillment of settlements with creditors in accordance with the debt repayment schedule.

Let us note the features of the introduction of the financial recovery procedure by the arbitration court in the manner established by Part 3, Clause 2, as well as Clause 3 of Art. 75 of the Bankruptcy Law.

If at the first meeting of creditors a decision is not made to apply one of the bankruptcy procedures and there is no possibility of postponing the consideration of the case, the arbitration court issues a ruling on the introduction of financial rehabilitation. The latter occurs when there is a petition from the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise, an authorized state body, as well as a third party or third parties, subject to the provision of security for the fulfillment of the debtor’s obligations in accordance with the debt repayment schedule. The amount of security must exceed the amount of the debtor's obligations included in the register of creditors' claims on the date of the court hearing by at least 20%. At the same time, the debt repayment schedule must provide for the start of debt repayment no later than 1 month. after the arbitration court makes a ruling on the introduction of financial rehabilitation and repayment of creditors' claims on a monthly basis, in proportion, in equal shares for a year from the date of commencement of satisfaction of creditors' claims. It follows from this provision of the Bankruptcy Law that the introduction of a financial recovery procedure is not conditional on the existence of a financial recovery plan.

If the first meeting of creditors makes a decision to apply to the arbitration court with a petition to introduce external administration or to declare the debtor bankrupt and to open bankruptcy proceedings, the arbitration court may issue a ruling on the introduction of financial rehabilitation. Here it is mandatory to have a petition from the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise, authorized government agency, as well as a third party or third parties and the provision of a bank guarantee as security for the fulfillment of the debtor’s obligations in accordance with the debt repayment schedule. The amount for which the bank guarantee is issued must exceed the amount of the debtor's obligations included in the register of creditors' claims on the date of the first meeting of creditors by at least 20%. In this case, the debt repayment schedule must provide for the start of debt repayment no later than 1 month. after the arbitration court makes a ruling on the introduction of financial rehabilitation and repayment of creditors' claims on a monthly basis, in proportion, in equal shares for a year from the date of commencement of satisfaction of creditors' claims. It follows from this provision of the Bankruptcy Law that the introduction of a financial recovery procedure in this case is not conditional on the existence of a financial recovery plan.

11.6. External management plan

External management, like financial recovery, from an economic point of view also represents a restructuring of the debtor organization: the introduction of a moratorium on satisfying creditors’ claims against the debtor, the restoration of solvency through special measures, are essentially elements of financial restructuring.

In accordance with the Bankruptcy Law, the external manager appointed by the arbitration court to implement the external management procedure must develop an external management plan. At the same time, the Bankruptcy Law does not provide for detailed regulation of the form and content of the external management plan.

At the same time, an analysis of a number of provisions of the Bankruptcy Law (Chapter VI Bankruptcy Law) allows you to identify the general contours of the external management plan, draw conclusions about the advisability of including certain sections in it, and also decide on the choice of methods used to develop such a plan.

An external management plan is a special type of plan; when developing it, it is necessary to simultaneously take into account the following requirements:

Bankruptcy Law to this document;

Submitted to the business plan of the debtor-legal entity.

An external management plan, like any other plan, is a document that must contain a set goal, qualitative and quantitative characteristics of consistently implemented actions aimed at achieving this goal within a specified time frame. The indicators and calculations given in the plan must be reasonable and interconnected.

Since, as noted earlier, external management is a procedure applied to the debtor in order to restore his solvency, the legally established criterion for restoring the debtor’s solvency is of great importance for assessing its effectiveness. The Bankruptcy Law establishes that the debtor’s solvency is recognized as restored in the absence of signs of bankruptcy established by Art. 3 of the Bankruptcy Law (Part 3, Clause 1, Article 106).

In practice, this means that it is necessary to satisfy the demands of creditors within the established period of external management (or terminate the debtor’s obligations in another way) in such a way that by the time external management ends (the end of the period of settlements with creditors) he has there was no debt to creditors for monetary obligations and to budgets and extra-budgetary funds for obligatory payments, overdue for more than 3 months. It should be especially emphasized that according to Art. 95 of the Bankruptcy Law introduces a moratorium on satisfying creditors’ claims for monetary obligations and obligatory payments, the deadlines for which came before the introduction of external management.

If external management is completed by restoring the debtor's solvency, settlements with creditors are carried out in the manner prescribed by Art. 120-122 of the Bankruptcy Law.

It follows from the provisions of the Bankruptcy Law that the external management plan must reflect the amount of creditors’ claims for monetary obligations and obligatory payments of the debtor falling in accordance with Art. 95 of the Bankruptcy Law under a moratorium.

It should be taken into account that during the period of the moratorium, penalties (fines, penalties) and other financial (economic) sanctions for non-fulfillment or improper fulfillment of monetary obligations and mandatory payments, as well as interest payable are not accrued, and for the amounts of principal debt on monetary obligations and arrears on mandatory payments available on the date of introduction of external management, interest accrues in the amount of the refinancing rate established by the Central Bank of the Russian Federation on the date of introduction of external management. However, the agreement of the external administrator with the bankruptcy creditor may provide for a smaller amount of interest payable or more short term accrual of interest compared to those provided for in Art. 95 of this size or duration.

Subject to accrual and payment under Art. 95 percent is accrued on the amount of claims of creditors of the queue from the date of introduction of external management and until the date of the arbitration court's ruling on the commencement of settlements with creditors on the claims of creditors, or until these claims are satisfied by the debtor or a third party during external management, or until a decision is made on recognition the debtor is bankrupt and the opening of bankruptcy proceedings.

The assessment of the size of creditors' claims should be based on data register of creditors' claims, which is maintained by an arbitration (external) manager or registrar (Article 16 of the Bankruptcy Law), and not only on the data of the debtor’s balance sheet as of the last reporting date. In order to have the information necessary for a predictive assessment of the effectiveness of the external management procedure, the external management plan should also include calculations of interest accrued on the amount of creditors’ claims for monetary obligations and (or) mandatory payments.

In addition to moratorium requirements, the plan must also reflect the amount of claims against the debtor for compensation for harm caused to life and health, as well as claims for the collection of arrears of wages. However, due to the fact that these requirements may be redeemed during the period of external management, when calculating the forecast value of the need for free funds for settlements with creditors, the external manager should take into account these requirements only in the part that cannot be repaid during external management.

This is how an assessment of the amount of need for free funds is formed, which, upon completion of external management, can be used to satisfy the claims of creditors for monetary obligations and obligatory payments of the debtor. Consequently, the main task to be solved when developing an external management plan is to find and show in the plan the main sources of the debtor’s funds for settlements with creditors in the established amounts.

These funds can be generated (accumulated) through the implementation of measures aimed at restoring the debtor’s solvency. Art. 109 of the Bankruptcy Law provides for the following measures to restore the debtor’s solvency:

Repurposing of production;

Closure of unprofitable production;

Collection of accounts receivable;

Sale of part of the debtor's property;

Assignment of rights of claim of the debtor;

Fulfillment of the debtor's obligations by the owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor, or a third party or third parties;

Increasing the debtor’s authorized capital through contributions from participants and third parties;

Placement of additional ordinary shares of the debtor;

Sale of the debtor's enterprise;

Replacement of the debtor's assets;

Other measures.

As noted earlier, the external management procedure is a procedure for deep financial restructuring of the debtor-legal entity through the mobilization of its internal and external resources and reserves in order to achieve financial stability and its subsequent strengthening. Therefore, special attention should be paid to the description of specific measures included in the external management plan to restore solvency, as well as the presentation of the sequence, assessment of costs and results of their implementation.

Analysis of the timing of the planned measures, the results of their implementation and comparison with the necessary costs will allow us to find common approaches to cash flow forecasting debtor during the period of external administration.

When forecasting the receipts (inflows) of funds to the debtor, it is necessary to determine their main sources. For example, one of the most important sources of funds for the debtor is revenue from core activities, which should be predicted taking into account the results of measures aimed at increasing the efficiency of production and sales activities of the enterprise, including those related to the repurposing of production, changing the range of products and services, changes in output volumes, etc. In addition, it is advisable to consider the sale of part of the debtor’s property, collection of receivables, etc. as sources of revenue. It should be especially noted that one of the sources of income (inflows) is depreciation charges. In a number of cases, it is possible to attract financial resources from third parties to implement the external management plan.

To increase the validity of the external management plan being developed in the case where the strategy for its implementation provides for the sale of the debtor’s enterprise, it is necessary to include measures in the external management plan to assess the debtor’s business. To carry out forecast calculations, it is necessary to evaluate the business using the income approach at the stage of developing an external management plan, since the use of this approach allows the most adequate assessment of the potential benefits of the future investor (buyer) from the acquisition of this business. When assessing the value of a business in terms of forecasting cash flows, one must be based on the provisions of Art. Software of the Bankruptcy Law.

When forming an action plan to restore the debtor's solvency in the external administration procedure, it is necessary to take into account that, according to the Bankruptcy Law, a number of measures can be included in the external administration plan only if there is a corresponding decision of the debtor's management body. So, according to paragraph 2 of Art. 94 of the Bankruptcy Law, the debtor’s management bodies, within the competence established by federal law, have the right to make decisions:

On introducing amendments and additions to the company’s charter in terms of increasing the authorized capital;

On determining the quantity nominal value announced shares;

On increasing the authorized capital of the joint-stock company by placing additional ordinary shares;

On submitting a petition to the meeting of creditors to include in the external management plan the possibility of an additional issue of shares;

On filing a petition for the sale of the debtor’s enterprise;

On the replacement of the debtor's assets;

On the conclusion of an agreement between a third party or third parties and the management bodies of the debtor authorized in accordance with constituent documents make decisions on concluding major transactions, on the conditions for providing funds to fulfill the debtor’s obligations;

Other decisions necessary for the placement of additional ordinary shares of the debtor.

The forecast of the debtor's expenses, in addition to the costs of its business activities, must take into account the results of the planned measures to restore the debtor's solvency, such as the closure of unprofitable production, the reduction of production and non-production costs, etc. In addition, the debtor's expenses (outflows of funds) should be taken into account expenses for the sale of part of the property of the debtor and (or) the enterprise (business) of the debtor, expenses for carrying out other measures to restore solvency, expenses for legal costs and external management, as well as expenses for satisfying claims to the debtor of citizens for compensation for damage caused to life and health, as well as claims for the collection of arrears of wages.

The result of forecasting the receipt of funds and their expenses during the period of external management is the determination of the amount of available funds, which, upon completion of external management, can be used to satisfy the claims of creditors for monetary obligations and obligatory payments of the debtor.

To increase the validity of forecast calculations, it is advisable to carry them out according to options, which is quite consistent with the basic principles of economic forecasting. At the same time, the necessary flexibility of the external management plan is achieved, allowing the arbitration manager, together with the debtor’s creditors, in the process of implementing the plan, to select, within the framework of the developed external management plan, the optimal strategy for taking measures aimed at restoring the debtor’s solvency, depending on changes in specific conditions.

When developing an external management plan, great attention is paid to terms of implementation of the external management procedure: the external management plan must provide for a period for restoring the debtor's solvency. This requirement of the Bankruptcy Law is often significant when deciding whether or not it is possible to restore the debtor’s solvency, since the forecasting of the debtor’s cash flows is carried out in a certain period, at the end of which the amount of accumulated available funds for settlements with creditors is calculated. Based on the procedure for extending the period of external management established by the Law (Article 108), it should be assumed that the external management plan must contain sufficient grounds (planned designs, forecast calculations) allowing one to draw conclusions that extending the period of external management will lead to the restoration of solvency debtor.

The external management plan must contain the procedure in which the external manager reports to creditors on the progress of external management.

Thus, taking into account the requirements of the Bankruptcy Law for the external management plan being developed by the arbitration manager, it is advisable to include the following sections in this plan:

1. General characteristics of the debtor.

2. Financial condition of the debtor.

3. Forecast of the amount of funds required to satisfy the claims of creditors.

4.Measures to restore the debtor’s solvency.

5. Justification for the possibility of restoring the debtor’s solvency (within the established period of external management or upon extension of the period of external management).

6. The procedure and timing for the implementation of the external management plan.

7. Of course, in each specific case, the external management plan

It may also contain other sections that reflect both the specifics of the debtor and the features of the strategy chosen by creditors to restore his solvency.

In addition, when developing an external management plan, it is necessary to take into account the peculiarities of bankruptcy procedures for certain categories of debtor legal entities, primarily city-forming, agricultural, strategic enterprises and organizations, as well as natural monopolies.

External management plans developed, for example, for professional participants in the securities market, will differ in specificity. The success of the implementation of the external management procedure largely depends on the validity and elaboration of the external management plan.

However, practice shows that when forming an external management plan, all available opportunities for radical financial recovery of an enterprise are not always revealed. Sometimes external management plans are only a list of poorly substantiated measures and separate, unrelated elements production program. A significant drawback of external management plans may be the lack of well-developed options for calculating cash flows.

The main difficulty in developing an external management plan lies in the strict limitation of the period allotted for the implementation of the debtor’s financial rehabilitation program, and in the fact that when forming a program of action in external management procedures, the insolvency practitioner will need to achieve a certain sustainable compromise between the interests of creditors, on the one hand, and the interests of the debtor's owners - on the other.

It is obvious that the formation and implementation of an external management plan requires high economic and legal qualifications of the developers and significant labor costs, which necessitates the need for the arbitration manager to involve relevant specialists in solving this problem.

11.7. Valuation in bankruptcy proceedings

In accordance with the provisions of the Bankruptcy Law, in various bankruptcy procedures there may be a need to conduct an assessment of property owned by the debtor. So, according to paragraph 1 of Art. 70 analysis of the debtor’s financial condition is carried out in order to determining the value of property owned by the debtor to cover legal costs, costs of paying remuneration to arbitration managers, in order to determine the possibility or impossibility of restoring the debtor’s solvency in the manner and within the time limits established by the Bankruptcy Law.

In paragraph 5 of Art. Software and clause 3 of Art. 111 provides that the initial sale price of an enterprise or part of the debtor’s property put up for auction in the external management procedure is established by a decision of a meeting of creditors or a committee of creditors on the basis market value of the property, determined taking into account the report of an independent appraiser hired by an external manager and acting on the basis of an agreement with payment for his services at the expense of the debtor’s property.

A similar procedure is established in paragraph 2 of Art. 112 and when making an assignment of the debtor’s rights of claim.

According to paragraph 3 of Art. 115 when replacing the debtor’s assets, the amount of authorized capital of the mentioned companies is determined on the basis market value of the contributed property, determined on the basis of the report of an independent appraiser, taking into account proposals from the management body of the debtor, authorized in accordance with the constituent documents to make decisions on concluding relevant transactions of the debtor.

According to Art. 130 of the Bankruptcy Law, during bankruptcy proceedings, the bankruptcy trustee carries out an inventory and assessment of the debtor’s property.

To carry out this activity, the bankruptcy trustee engages independent appraisers and other specialists with payment for their services at the expense of the debtor’s property, unless another source of payment is established by the meeting of creditors (committee of creditors).

The value of the debtor's property is calculated by an independent appraiser, unless otherwise provided by the Bankruptcy Law.

The meeting of creditors (committee of creditors) has the right to determine the person who, with its consent, is entrusted with the obligation to pay for these services with subsequent extraordinary compensation for the expenses incurred by him at the expense of the debtor’s property.

The property of a debtor - a unitary enterprise or a debtor - a joint stock company, more than 25% of the voting shares of which are in the state or municipal property, is assessed by an independent appraiser with the presentation of the conclusion of the state financial control body on the assessment, with the exception of cases provided for by the Bankruptcy Law.

Based on a decision of a meeting of creditors or a committee of creditors, an assessment of the debtor’s movable property, the book value of which as of the last reporting date preceding the declaring of the debtor bankrupt is less than 100 thousand rubles, can be carried out without the involvement of an independent appraiser.

The founders (participants) of the debtor or the owner of the property of the debtor-unitary enterprise, bankruptcy creditors, authorized bodies have the right to appeal the results of the assessment of the debtor’s property in the manner established federal law.

In addition, the sale of the debtor’s property, assignment of the debtor’s rights of claim, as well as the replacement of his assets, carried out in bankruptcy proceedings, can be carried out taking into account the market value of the property, determined in accordance with the report of an independent appraiser.

The law establishes that the costs of attracting relevant specialists and paying for their services are included in the property of the debtor. In the event that the property owned by the debtor is not enough to pay for these services, creditors must establish another source of payment for these expenses.

As noted earlier, in the process of external management, various measures are applied to the debtor organization to restore its solvency. Among the measures established by the Law to restore the debtor's solvency, a special place is occupied by the sale of the debtor's enterprise. The need to determine the initial sale price of the enterprise, provided for in Art. The Bankruptcy Law software provides ample opportunities for the use of valuation methods and the involvement of professional appraisers as part of external management.

The procedure for selling an enterprise as a single property complex was first established by Art. 132 of the Civil Code of the Russian Federation. In accordance with the provisions of this article, an enterprise is recognized as an object of civil rights and is a property complex used to implement entrepreneurial activity. It follows from this that the enterprise as a whole or part of it can be the object of purchase and sale, pledge, lease and other transactions related to the establishment, change and termination of property rights. The Code contains rules governing the general procedure for the sale of an enterprise.

The need to introduce special rules into the Bankruptcy Law on the sale of an enterprise within the framework of external management is primarily due to the need to free the debtor from debts and ensure the possibility of continuing its economic activities.

The sale of an enterprise involves the alienation of all types of property intended for the implementation of the debtor’s business activities , including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, as well as rights to designations that individualize the debtor, its products, works and services (company name, trademarks, service marks), other rights belonging to the debtor, with the exception of rights and obligations that cannot be transferred to other persons. Wherein monetary obligations and obligatory payments of the debtor on the date of acceptance by the arbitration court of the application for declaring the debtor bankrupt are not included in the composition of the enterprise.

All employment contracts(contracts) valid at the time of sale of the enterprise, remain strong in this case, the rights and obligations of the employer are transferred to the buyer, and employees are not deprived of the right to terminate employment contract with the new owner of the enterprise.

By general rule the enterprise is sold through open bidding in the form of an auction. If the property of an enterprise includes property classified as limited negotiable property, the enterprise is sold only through a closed auction.

In some cases, tenders may be held in the form of a competition. Yes, Art. 132 of the Bankruptcy Law provides for the sale of preschool educational institutions, generally educational institutions, medical institutions, sports facilities, communal infrastructure facilities related to life support systems, through bidding in the form of a competition in the manner established by Art. Software of the Law. In this case, the sale price of these objects is determined by an independent appraiser. The funds received from their sale are included in the bankruptcy estate.

In addition, when selling an enterprise to a city-forming organization (Article 175 of the Bankruptcy Law), if there is a petition from a local government body or the relevant one involved in the bankruptcy case federal body executive power or executive power body of a constituent entity of the Russian Federation, an essential condition of the purchase and sale agreement for an enterprise of a city-forming organization may be the preservation of jobs for at least 50% of the employees of such an enterprise on the date of its sale for a certain period, but not more than for three years from the date of entry into force of the agreement.

Other conditions may be established solely with the consent of the meeting of creditors. Terms of sale may vary. They can be divided into social and investment. TO social conditions sales include: maintaining the existing system of labor protection and health of workers; restrictions on changing the profile of activities of socio-cultural, public utility or transport services for the population or on cessation of their use; implementation of security measures environment and the health of citizens. Investment conditions may provide for the implementation of measures in relation to the object of sale for its reconstruction, acquisition of certain types of equipment, modernization and expansion of production.

Determining the initial price of the debtor's enterprise is of great importance for carrying out this measure within the framework of external management. Therefore, the Bankruptcy Law establishes a rule according to which the decision to sell the debtor's enterprise, made by the debtor's owners, must contain an indication of the minimum sale price of the enterprise.

In connection with the importance of determining the initial price of the debtor's enterprise, it is necessary to answer the question of what valuation methods are appropriate when calculating the initial price of the debtor's enterprise, for which the purpose of the assessment should be determined. It seems obvious that the sale of the debtor's enterprise is possible in external management procedures only if there are investors (buyers) interested in acquiring this business. Thus, the purpose of the assessment will be to determine investment value enterprises.

At the same time, the current value of future income that the new owner can receive from the acquired debtor's enterprise represents the upper limit of the market price of this business on the part of the buyer and serves as the price at which the external manager should strive to sell the debtor's enterprise. In other words, the basic principles for assessing the debtor’s enterprise in this case should be principles of profitability and expectations.

Since the purpose of selling a business in the process of external management is not to liquidate the debtor, but to preserve it as an existing economic entity, it is assumed that the debtor’s business has favorable development prospects after being released from debt obligations.

From the above it follows that the income approach is one of the priorities when determining the starting price of an enterprise in the event of the sale of the debtor’s enterprise, when the investor seeks to acquire not a set of assets consisting of buildings, structures, machinery, equipment, intangible assets, etc., but a flow future income, allowing him to recoup his investment and make a profit. At the same time, other approaches to valuation may be in demand to determine the starting price of the debtor’s enterprise.

The place and role of valuation in bankruptcy procedures, the specifics of using different approaches in determining the initial price of a debtor's enterprise in external management are of great importance. Determining the initial price in the process of restoring the debtor's solvency is one of the radical ways of restructuring it.

Restructuring of enterprises in relation to solving the problems of financial recovery of Russian enterprises both within the framework of judicial and extrajudicial bankruptcy procedures - current problem, the success of which largely determines the recovery of the Russian economy as a whole. At the same time, mastering the technique of developing plans for the financial rehabilitation of enterprises, as well as external management plans, is also essential.

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