On 21 May 2021, Law no. 69 of 21 May 2021 converted into law, with amendments, Law Decree no. 41 of 22 March 2021 (the so-called Decreto Sostegni), as published in the Italian Official Gazette. The decree set out urgent measures to support businesses and economic operators in the labour, health and territorial services during the Covid-19 emergency.
One important change envisaged by the new law is the introduction of a new paragraph in Art. 182-bis of Royal Decree no. 267 of 16 March 1942, as amended ("Art. 182-bis"), providing a procedure to amend the underlying reorganisation plan in the course of its implementation without losing all the protections granted by Art. 182-bis.
Notably, the new law provisions state that should substantial modifications to the Art. 182-bis restructuring plan be required after the approval (omologazione) to preserve its feasibility and the implementation of the relevant restructuring agreement(s), the debtor is entitled to adjust the plan in light of the changed circumstances by requesting the independent expert to prepare and deliver a supplemental assessment report concerning the amended plan. The amended plan together with the supplemental report will be published by the debtor in the Companies' Register and creditors will be notified thereof by registered letter or certified email. Within 30 days of receipt of the notice, challenges may be lodged with the court.
These new provisions anticipate the entry in force of the provisions already foreseen by article 58, paragraph 2, of the new Bankruptcy Code, which is currently scheduled to take effect on 1 September 2021 (please see our client alert the (provisional) adoption of the new Italian bankruptcy code: an ongoing process) and represent a very helpful tool to fine-tune restructuring plans after their formal adoption without prejudicing the underlying Art. 182-bis procedure and preserving at the same time the appropriate remedies for dissenting creditors.
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- Art. 182-bis is one of the most frequently used pre-insolvency procedures underpinning consensual restructurings, with a very light court supervision. The debtor shall enter into one or more restructuring agreements with creditors representing no less than 60% of the total outstanding debts based on a restructuring plan to be assessed by an independent expert. Once the agreement(s) is executed and the restructuring plan assessed, the debtor files them with the competent court for the final approval (omologazione). Non-adhering creditors shall be paid in full within 120 days of the court's approval.
