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General recommendations regarding commercial contracts
We also make the following general recommendations regarding your commercial contracts:
• Communication: Maintain open lines of communication with your contractual counterparties, to manage expectations and reach agreed compromises around ongoing performance.
• Awareness of governmental decisions, administrative actions: Stay up-to-date with any government decisions or administrative actions that might affect your business and the industry in which it operates.
• Contract negotiations: With any contracts you are negotiating, now and in the future, include express reference to such terms as ‘infection’, ‘disease’, ‘pandemic’, ‘epidemic’ etc in “force majeure” clauses.
• Mitigation of losses: If you are seeking to rely on “force majeure” or “MAC” clauses in your contracts, ensure you are taking appropriate steps to mitigate your losses from the impact of COVID-19.
• Legal advice: Seek specialist legal advice to help you determine your rights and obligations under your commercial contracts.
The above overview has been provided for general information purposes only. It is not, nor is it intended to be treated as, legal advice, an exhaustive list of all possible legal bases to excuse non-performance under a commercial contract or an exhaustive list of all legal risks COVID-19 presents for commercial contracts, and is subject to change without notice.
This is a podcast recording – Please Follow this link for the full podcast.
To reduce . . .
There is plenty of advice on how to work remotely, but how do you lead in this situation?
You trust your team, but how do you keep across what they are doing without micromanaging?
You want to be approachable, but how you maintain an open door policy without burning yourself out
There is information coming from everywhere, how can you ensure they aen’t
What about the team member who’s main source of social contact is the office
And above all, how do you make sure that they stop!
About the Speaker
My guest today is Gail Page from Positive Pathways. An expert in addressing conflict in the business, Gail helps leaders and teams to build healthier workplace relationships. This leads to psychological safety becoming part of a company’s DNA and paves the way to realising the individual and collective potential of the team and the business.
In this episode we explore how to lead remote teams in a crisis
This episode was recorded on March 23. We make reference to events related to the Coronavirus based on what was happening at that time. The situation is fluid and has changed significantly since then, please refer to accredited medical and news sites for the most recent updates.
At 11:59 pm on Wednesday 25 March 2020, the New Zealand COVID-19-alert level will move to its . . .
Management: The board of directors (‘Board’) needs to work closely with, and support, management. Management will be under significant pressure at this time, and so engagement with management needs to be pragmatic but empathetic. The Board’s expectations should also be reasonable in the circumstances and clearly communicated.
General manager/CEO: The Board should require rolling operational and financial updates from the general manager/CEO. The situation is evolving quickly, to the point where New Zealand will soon be in lockdown – timely reports will allow the Board to understand what effect COVID-19 is having on the company and what strategic actions need to be taken and when.
Employees, financiers, contracting parties: Boards should be telling management to keep the company’s various stakeholder groups (i.e. employees, financiers, contracting parties) up to date with developments. External communications need to be transparent and factual. Internal communications, with employees, need to be sensitive but realistic.
2. GOVERNMENT STIMULUS PACKAGE – WAGE SUBSIDIES FOR BUSINESS
Boards should be applying for relief under the wage subsidy and Business Finance Guarantee Scheme components of the Government’s COVID-19 economic response package:
Wage subsidies: Conditional wage subsidies are available for all businesses/employers that are significantly impacted by COVID-19 and are struggling to retain employees as a result.
Amount: At the time of writing, the subsidy is $585.80 per week for a full-time employee (20 hrs or more) or $350.00 per week for a part-time employee (less than 20 hrs). The payment is made as a lump sum for a period covering 12 weeks. There is no maximum amount of assistance a business can receive. Applications for the subsidy can be made until approximately mid-June 2020.
How to apply: Applications can be made through an online portal on the “Work and Income” website www.workandincome.govt.nz. The Ministry of Social Development will aim to make first payments no later than five working days from when applications are received.
Business Finance Guarantee Scheme
At the time of writing, the Government has just announced a $6.25b “Business Finance Guarantee Scheme”. It will provide short-term credit to solvent small and medium-sized firms affected by the outbreak. The package will include a six-month principal and interest payment holiday for SME customers whose incomes have been affected. The scheme will include a limit of $500,000 per loan and will apply to firms with a turnover of between $250,000 and $80 million per annum. The loans will be for a maximum of three years. Specific details of the scheme are still being finalised.
3. BUSINESS CONTINUITY AND CRISIS MANAGEMENT
Business continuity and crisis management: The Board and management should be reviewing and actioning the company’s business continuity and crisis management plans, and continually assessing whether the plans are adequate, given the circumstances. All available third party sources of assistance should be contacted, including government (as mentioned above), shareholders and the wider stakeholder pool. Also, crisis-response roles for directors and management are critical – the Board should be sharing these with management, now.
Areas of investigation/analysis: Management should be taking steps to manage COVID-19-related risk to the business’ operations, and either the Board (or the company’s audit or risk committee) should be monitoring those steps. This requires a constant re-assessment and analysis of risk and respective processes and controls. Key areas to focus on and address include:
the company’s liquidity and financing needs, immediately and in the long-term;
the extent of risk exposure under current financing covenants;
impact of employee disruption and absence from work, and remote staffing needs;
impact on compliance requirements, IT systems and cybersecurity;
impact of supply chain disruption on operations and office/plant closures;
supply chain resilience and the scope of alternative customer and supplier pools;
exposure to liability under commercial contracts and review of key terms, including ‘force majeure’, ‘event of default’ and ‘termination’; and
emergency succession planning to address general manager/CEO replacement, board continuity and quorum contingencies.
4. HEALTH AND SAFETY
Health and Safety at Work Act: Directors and management have health and safety obligations to staff under the Health and Safety at Work Act 2015. Directors can be held personally liable if they fail to ensure the company is complying with those obligations. Compliance is critical. The Board should seek legal advice on the company’s health and safety obligations, particularly in the context of COVID-19.
Employee well-being: Employee well-being, in the context of COVID-19, is paramount. Once the lockdown ends, the Board needs management to keep it up-to-date with all steps being taken to minimise the risk of transmission and preserve employees’ health and safety. Also, employees will want to know that their work environment is safe and that they’re being cared for – once the lockdown is over, the Board should require management to let all staff know what protective measures are being taken to ensure their safety.
5. FORECASTS, FINANCIAL POSITION AND STRUCTURE
Short-term forecasts: The Board should ensure management are preparing ‘good-case’/’bad-case’, short-term (i.e. quarterly) business forecasts and an action plan for each forecast. Performance should be tracked closely against forecasts, so the Board can decide what strategic action is needed.
Debt and creditors: Many companies will face liquidity challenges as a result of COVID-19 – declining revenues and cashflows will make it harder to meet debt covenant obligations. In these circumstances, the focus of directors’ duties quickly shifts to the duty to act in the best interests of creditors (discussed below). The Board should be engaging with creditors (e.g. financiers, landlords) with a view to obtaining relief from strict repayment obligations.
Restructuring: If funding, or funding relief, isn’t readily available, and the threat of insolvency is real, the Board (in conjunction with management and shareholders) should consider whether a restructuring of the business’s capital structure or operations might help stem losses. Converting business debt to equity, segregating business divisions, selling distressed assets, implementing redundancy programmes, instigating other OPEX-reducing measures, or winding up divisions or subsidiaries, are some possible courses of action which could improve cash flow and/or deliver cost savings. Placing the company into voluntary administration or liquidation should also be considered. The Board should ensure financial, tax, legal and restructuring advisors are engaged early to advise.
6. OPPORTUNITY FROM ADVERSITY
Acquisition opportunities: COVID-19 might create investment opportunities for companies with targeted acquisition strategies and readily accessible funding. Motivated buyers might take advantage of distressed companies that are offloading assets or divisions. Financially hampered “Code companies” (i.e. companies that are either listed on the stock exchange or have 50 or more shareholders and at least $30m in assets or $15m in revenue) might become attractive takeover targets under the Takeovers Code.
Advisors and strategies: The Board should ensure it has a trusted group of financial and legal advisors and maintains frequent contact with primary shareholders and stakeholders. It should also be continually assessing strategies (from how to respond to a formal takeover offer to deciding whether to pursue acquisition opportunities).
7. DIRECTORS’ DUTIES
Directors need to be mindful of their ongoing statutory duties under the Companies Act 1993. Breach of these duties can result in personal liability for directors:
Reckless trading: With COVID-19, the key duty for directors will be ensuring the company doesn’t carry on in a manner likely to create a substantial risk of loss to the company’s creditors – that is, directors don’t allow the company to trade recklessly. Directors of companies that have been financially impacted by COVID-19 run the risk of breaching this duty. Board members should also be mindful of their duty not to allow the company to incur obligations they don’t reasonably believe the company can perform.
Active engagement: It is critical for the Board to remain fully engaged and to maintain oversight of business operations during the COVID-19 crisis. The Board should naturally be questioning management’s decisions and taking advice from advisors. This approach should hopefully allow the Board to gauge whether they are properly discharging their statutory duties.
Virtual meetings: With the Government-imposed lockdown, the Board must consider whether all board and shareholder meetings, for the foreseeable future, can be either delayed or held virtually (or virtually and in person, if required). The Board should check: (i) that the company’s constitution permits virtual meetings and, if not, recommend an appropriate amendment be made; and (ii) that the company has the technological capabilities available to it to facilitate virtual meetings.
Electronic signatures: The Board also needs to be mindful of laws concerning the use of electronic signatures. The Companies Office, for example, has rejected documents where electronic signatures don’t comply with legal requirements under the Contract and Commercial Law Act 2017 (see https://companies-register.companiesoffice.govt.nz/help-centre/managing-your-online-account/filing-documents-with-electronic-signatures/). We recommend Boards seek legal advice in this regard. Specific “e-signing” software may be required.
Post-COVID-19 analysis: Once the dust has settled, and the fallout from COVID-19 is clearer, the Board and management should assess what key lessons have been learned from COVID-19 and whether any change in work policies or approaches adopted during the outbreak (e.g. work-from-home policies) might lead to operational efficiencies in the future. The Board should also be involved in an appraisal of the way in which the crisis was handled, by the Board and by management.
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How can I create immediate cash flow and weather the coming months?
How do I generate sales when borders are closing and everyone is staying away?
How bad are things likely to get, and for how long?
How can I turn tough times into the ultimate opportunity?
Roger James Hamilton has lived through the stock market crashes and recessions of 1986, 1997, 2001 and 2008, and has been warning of the 2020 crash in his events and videos over the last 12 months. He has built Genius Group into a $100 million entrepreneur education group with over 1.4 million members, and in the last week he has switched his advice 100% from preparing for the crash to now managing its arrival.
Join Roger and his global entrepreneur community for his Four Week Cash Flow Crash Course to get a practical step-by-step guide on how to maintain and grow your cash flow and business, while rising up in difficult times.
Well these are very strange times that we find ourselves in.
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As a leader deciding the first step towards change is often the hardest thing to do. Enter Filipo . . .
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Our government have extended their support for businesses affected by COVID-19. Aimed at helping . . .
Business Continuity Planning;
Financial & Cashflow Management;
Employment & HR;
Health and Wellbeing.
Regional Business Partner Network fully fund the first $2000 of professional engagement (approximately 8 hours depending on the advice area) for businesses that meet a set of clear criteria and apply through the COVID-19 BUSINESS SUPPORT application process. We can guide you through this process and assist with confirmation of eligibility for your company.
(NB: After the first $2000 of full funding, ATEED may cofund further engagement under this program. We can discuss this further once required. This program is also open to businesses who do not meet the funding criteria but would like to benefit from the coaching opportunity.)
General funding eligibility criteria:
That you are an employer;
Your business was generally sound prior to the COVID-19 challenge and with the right support should survive to provide jobs and income in the future;
You do need the financial support from RBPN for coaching;
The COVID-19 crisis is affecting your business.
Limited funding is available with a deadline date for funding utilisation of 30 June 2020, so if you meet the criteria above, please complete the form below to take your application forward. For more information on the program, learning outcomes and what to expect, visit our COVID-19 Business Continuance, Wellness & Recovery Programme webpage. Once you have completed the form, you will receive an email with additional information and next steps.
Start your Application Here:
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As a leader deciding the first step towards change is often the hardest thing to do. Enter Filipo Levi, an experienced leader and former international Rugby Captain. Filipo is inspiring, motivating and transforming people with the right tools and knowledge.
Filipo Levi has helped clients to unleash their potential, paving the way towards both personal and professional success. Discover what they can do for you today.
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