Avoid bankruptcy with the WHOA

Effective date: 1 January 2021

Is your company in danger of going bankrupt? Make agreements with your creditors and have these approved by a judge. Because of a new law, the WHOA, you can come to an agreement through the courts even when not all creditors agree. This new law comes into effect on 1 January 2021. Read what the conditions are and what you can do now.

The WHOA

WHOA stands for the homologation private agreement in bankruptcy Act (Wet Homologatie Onderhands Akkoord in Dutch). If all creditors and debtors cannot reach a solution together, the court can still approve (homologate) an agreement. This agreement will automatically apply to all creditors and shareholders involved. Also creditors who do not agree with the plan.

Check the conditions

Before the court approves the settlement, your company must meet the following conditions:

You can no longer pay the debts of your company
Your company is essentially profitable
This agreement is more favourable for your creditors than bankruptcy of your company
You have a feasible plan that meets legal requirements. You can determine the content of the agreement yourself
You ensure a fair and equal distribution of money and assets among all creditors
At least one creditor must vote in favour of the private agreement
The employment conditions of your staff remain the same

Start preparing

Before the WHOA comes into force on 1 January 2021, you can already prepare a draft agreement. These are the steps you can take now:

Consult with your creditors and shareholders
Make arrangements about, for example, repaying later, cancelling debts or converting debts into shares
Record those agreements in a draft agreement
Present the draft agreement to your creditors and shareholders who you wish to involve in the private agreement
Organise a vote and invite your creditors and shareholders
Report on the outcome of the vote within seven days after the vote
Send your creditors the report of the vote
Inform the court that you are working on an agreement according to the WHOA

Once the draft agreement is completed, you can submit the agreement to the court for approval immediately after 1 January 2021.

Call in an advisor

The WHOA procedure is short, but complicated. Start preparing in time. You can ask a legal or financial adviser to assist you. There are costs associated with this.

Ask for a cooling off period

If you have offered an agreement, you can ask the court for a cooling-off period. For example, your creditors cannot seize assets from your business assets. And the bank may not offset debts against the balance in your bank account. The judge must first give permission for this.