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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 6 : Business Rescue and Compromise with Creditors

Part E : Compromise with creditors

155. Compromise between company and creditors

 

 

1) This section applies to a company, irrespective of whether or not it is financially distressed as defined in section 128(1)(f), unless it is engaged in business rescue proceedings in terms of this Chapter.

 

2) The board of a company, or the liquidator of such a company if it is being wound up, may propose an arrangement or a compromise of its financial obligations to all of its creditors, or to all of the members of any class of its creditors, by delivering a copy of the proposal, and notice of meeting to consider the proposal, to—
a) every creditor of the company, or every member of the relevant class of creditors whose name or address is known to, or can reasonably be obtained by, the company; and
b) the Commission.

 

3) A proposal contemplated in subsection (2) must contain all information reasonably required to facilitate creditors in deciding whether or not to accept or reject the proposal, and must be divided into three Parts, as follows:
a) Part A—Background, which must include at least—
i) a complete list of all the material assets of the company, as well as an indication as to which assets are held as security by creditors as of the date of the proposal;
ii) a complete list of the creditors of the company as of the date of the proposal, as well as an indication as to which creditors would qualify as secured, statutory preferent and concurrent in terms of the laws of insolvency, and an indication of which of the creditors have proved their claims;
iii) the probable dividend that would be received by creditors, in their specific classes, if the company were to be placed in liquidation;
iv) a complete list of the holders of the company issued securities, and the effect that the proposal would have on them, if any; and
v) whether the proposal includes a proposal made informally by a creditor of the company.
b) Part B—Proposals, which must include at least—
i) the nature and duration of any proposed debt moratorium;
ii) the extent to which the company is to be released from the payment of its debts, and the extent to which any debt is proposed to be converted to equity in the company, or another company;
iii) the treatment of contracts and ongoing role of the company;
iv) the property of the company that is proposed to be available to pay creditors’ claims;
v) the order of preference in which the proceeds of property of the company will be applied to pay creditors if the proposal is adopted; and
vi) the benefits of adopting the proposal as opposed to the benefits that would be received by creditors if the company were to be placed in liquidation.
c) Part C—Assumptions and conditions, which must include at least—
i) a statement of the conditions that must be satisfied, if any, for the proposal to—
aa) come into operation; and
bb) be fully implemented;
ii) the effect, if any, that the plan contemplates on the number of employees, and their terms and conditions of employment; and
iii) a projected—
aa) balance sheet for the company; and
bb) statement of income and expenses for the ensuing three years,

prepared on the assumption that the proposal is accepted.

 

4) The projected balance sheet and statement required by subsection (3)(c)(iii)—
a) must include a notice of any significant assumptions on which the projections are based; and
b) may include alternative projections based on varying assumptions and contingencies.

 

5) A proposal must conclude with a certificate by an authorised director or prescribed officer of the company stating that any—
a) factual information provided appears to be accurate, complete, and up to the date; and
b) projections provided are estimates made in good faith on the basis of factual information and assumptions as set out in the statement.

 

6) A proposal contemplated in this section will have been adopted by the creditors of the company, or the members of a relevant class of creditors, if it is supported by a majority in number, representing at least 75% in value of the creditors or class, as the case may be, present and voting in person or by proxy, at a meeting called for that purpose.

 

7) If a proposal is adopted as contemplated in subsection (6)—
a) the company may apply to the court for an order approving the proposal; and
b) the court, on an application in terms of paragraph (a) may sanction the compromise as set out in the adopted proposal, if it considers it just and equitable to do so, having regard to—
i) the number of creditors of any affected class of creditors, who were present or represented at the meeting, and who voted in favour of the proposal; and
ii) in the case of a compromise in respect of a company being wound up, the report of the Master required in terms of the laws contemplated in item 9 of Schedule 5.

 

8) A copy of an order of the court sanctioning a compromise—
a) must be filed by the company within five business days;
b) must be attached to each copy of the company’s Memorandum of Incorporation that is kept at the company’s registered office, or elsewhere as contemplated in section 25; and
c) is final and binding on all of the company’s creditors or all of members of the relevant class of creditors, as the case may be, as of the date on which it is filed.

 

9) An arrangement or a compromise contemplated in this section does not affect the liability of any person who is a surety of the company.