Hurricane Force: A Victory for Shareholders, Big and Small3 Jul 2021 06:50
https://www.rosenblatt-law.co.uk/media/hurricane-force-a-victory-for-shareholders-big-and-small/
2nd July 2021
On 28 June 2021, the High Court delivered judgment refusing to sanction a restructuring plan put forward by the Board of Hurricane Energy Plc [“Hurricane”], and vehemently supported by an ad hoc committee of Hurricane’s bondholders [“the Hurricane Plan”] [2021] EWHC 1759 (Ch). Whilst the Plan drew criticism and concern from several hundred of Hurricane’s private investors, only one institutional investor, Crystal Amber Fund Limited [“Crystal Amber”], was ready, willing and able to invest the time and money to formally oppose the Plan, with full legal and expert representation.
Restructuring Plans pursuant to section 26A of the Companies Act 2006
The Corporate Insolvency and Governance Bill 2020 received royal assent on 25 June 2020, and was passed into law as the Corporate Insolvency and Governance Act 2020 [“the Act”]. Alongside several other key updates, the Act introduced into the Companies Act 2006 (Part 26A) a new “cross-class cram down” arrangement and reconstruction process as an additional tool to rescue financially distressed companies [“Part 26A Plan”].
This new restructuring tool is available to companies which have, or are likely to encounter, financial difficulties that are, or are likely to, affect their ability to carry on trading as a going concern.
Broadly speaking, a Part 26A Plan is similar in form and process to the existing scheme of arrangement procedure under Part 26 of the Companies Act 2006 [“Scheme”]. Case law in relation to the Scheme process is well established and will be applied to determining Part 26A Plans. However, there is one major distinction between a Part 26A Plan and a Scheme; while a Scheme requires approval by at least 50% in number constituting 75% in value of each relevant class of creditors or members, as the case may be, present and voting either in person or by proxy in favour of the Scheme for it to proceed to sanction by the Court, a Part 26A Plan allows the court discretion to sanction a plan where a number representing 75% in value of the creditors or members, as the case may be, of each relevant class present and voting either in person or by proxy in favour of a plan, even where there is a dissenting class (or classes). The dissenting class is “crammed down”, hence the newly coined phrase.
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