目前对于陷入困境但仍具备重整价值及重整可行性的企业而言，破产重整是其实现风险出清和企业重生的重要方式。在破产重整中，投资人参与的主要方式包括股权投资、资产投资和债权投资等，其中股权投资为较为重要的投资方式（其基本流程如下图），本文将结合实践，从投资人视角，浅析破产重整中股权投资的机遇和风险防范，以期为投资人参与重整投资提供帮助。
图1：破产重整中股权投资基本流程图
一、重整投资的机遇
现阶段，重整投资作为“新一轮招商引资”处于重要机遇期。以上市公司重整为例，2023年7月底的数据显示其中超90%的产业投资人和财务投资人账面呈现浮盈[1]；2024年以来，截至11月，有44家上市公司被申请重整及预重整，较前一年同期增加超四成[2]。由此可见，破产重整蕴含着较多投资机会，其在目前政策环境、价值发掘、成本控制和业务整合等方面均展现出投资“机遇”。
近年来，越来越多的企业面临债务困境，由于该等企业较多成立时间久、体量巨大，且存在经营多元化、债权债务形式多样化的情形，企业资金链的断裂易引发债务风险，实践中迫切需要进行债务重组，使债权人得到受偿，让企业重获新生。从目前情况来看，信托工具越来越多地被应用于债务重组中，包括在破产重整前的债务重组阶段，也包括在破产重整阶段。根据中国信托业协会于2022年12月12日发布的《2022年3季度中国信托业发展评析》，截至2022年3季度末，我国信托资产规模余额约为21.07万亿元。另根据建信信托有限责任公司（“建信信托”）发布的《建信信托2021年年度报告》，截至2021年12月31日，建信信托破产重整服务信托规模超2,300亿元[1]；根据中信信托有限责任公司（“中信信托”）发布的《中信信托二〇二一年年度报告》，截至2021年12月31日，中信信托特殊资产服务信托业务受托规模近160亿元[2]。
This week’s TGIF takes a look at the recent case of Mills Oakley (a partnership) v Asset HQ Australia Pty Ltd [2019] VSC 98, where the Supreme Court of Victoria found the statutory presumption of insolvency did not arise as there had not been effective service of a statutory demand due to a typographical error in the postal address.
What happened?
This week’s TGIF examines a decision of the Victorian Supreme Court which found that several proofs had been wrongly admitted or rejected, and had correct decisions been made, the company would not have been put into liquidation.
BACKGROUND
This week’s TGIF considers Re Broens Pty Limited (in liq) [2018] NSWSC 1747, in which a liquidator was held to be justified in making distributions to creditors in spite of several claims by employees for long service leave entitlements.
What happened?
On 19 December 2016, voluntary administrators were appointed to Broens Pty Limited (the Company). The Company supplied machinery & services to manufacturers in aerospace, rail, defence and mining industries.
This week’s TGIF considers the recent case of Vanguard v Modena [2018] FCA 1461, where the Court ordered a non-party director to pay indemnity costs due to his conduct in opposing winding-up proceedings against his company.
Background
Vanguard served a statutory demand on Modena on 27 September 2017 seeking payment of outstanding “commitment fees” totalling $138,000 which Modena was obliged, but had failed, to repay.
The recent decision of the Court of Appeal of Western Australia, Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in Liquidation) (Receivers and Managers Appointed) [2018] WASCA 163 provides much needed clarity around the law of set-off. The decision will no doubt help creditors sleep well at night, knowing that when contracting with counterparties that later become insolvent they will not lose their set-off rights for a lack of mutuality where the counterparty has granted security over its assets.
This week’s TGIF considers the decision in Mujkic Family Company Pty Ltd v Clarke & Gee Pty Ltd [2018] TASFC 4, which concerns a rather novel issue – whether a solicitor acting for a shareholder might also owe a duty of care to the company in liquidation.
What happened?
In 2015, the Supreme Court of Queensland ordered that the corporate trustee of a family trust be wound up.
This week’s TGIF considers the process that a liquidator may follow when a director fails to attend at an examination. It considers the appeal in Mensink v Parbery [2018] FCAFC 101, in which the Court set out the relevant differences between arrest warrants issued to require a director to attend an examination, and arrest warrants to answer charges for contempt.
What happened?
How far do liquidators’ powers to demand documents for public examinations extend? Which documents can they request and from whom can they request them?
In this week’s TGIF, we consider these questions in the context of the recent case of Re Cathro [2018] FCA 1138.
BACKGROUND