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”。
It is not uncommon for contractors, in several industry sectors, to contract with a special purpose vehicle (SPV), whose day-to-day management is effectively controlled by a parent company, and the SPV has with little to no assets beyond cash flow provided by its parent. In this article we look at what a claimant could do outside of the traditional insolvency process in circumstances where the SPV goes into a form of external administration such as administration or liquidation and there are no assets available to the external administrators.
在当前的投融资环境下,国资背景的投资方常常承担着地方政府的返投任务,对被投企业的注册地点存在特定诉求,因此,若被投企业未注册在此类投资方期待的特定地区,则投资方可能会要求被投企业迁址以实现当地的招商引资。市场上已出现部分项目的投资方以此作为投资交割的前提条件。
优质企业无疑都是各地的“心头肉”,能为当地带来税收效益、工作岗位等。因此,企业的迁出之路可能面临迁出地政府“不放手”、迁出和迁入程序衔接不顺畅等一系列疑难问题,可能拉长迁址进度,甚至实质上无法最终完成迁址。
为协助企业顺利实现“迁址”目的,我们在相关交易中对企业迁址的命题进行重新思考和思路转换。事实上,除了直接变更注册地址,企业也可考虑通过股权重组进行股权结构的调整,以满足投资方对于变更融资主体及后续上市主体所在地的需求。但此等“重组式迁址”也并非一路坦途,如有不慎,同样可能面临法律和税务的障碍和风险,因此需要提前对这类重组交易进行审慎考量和规划。
一、直接迁址的障碍和难点
The Supreme Court’s landmark decision in Harrington v. Purdue Pharma L.P. – holding that the Bankruptcy Code does not authorize the release of third-party claims against non-debtors in a reorganization plan without the consent of the affected claimants – will have a lasting impact on mass tort bankruptcy cases and likely nullifies one of the primary benefits of the so-called “Texas Two-Step” strategy: obtaining third-party releases of the debtor entity’s non-debtor affiliates.
The market is experiencing almost unprecedented levels of liquidity, across public and private debt and equity capital markets. This is staunching restructuring activity, which might otherwise be expected to rise (not least as pandemic-related government support starts to withdraw). There are also many companies still sponsoring defined benefit pension schemes. The statutory and regulatory landscape in this area has evolved significantly in recent months – with new powers for regulators, and new restructuring tools for debtors.
While securitisations offer numerous benefits, there are a number of important points for originators to consider to facilitate entering into a securitisation transaction and to avoid prolonged legal work further down the line. In this article, we briefly discuss essential points that originators should be aware of and discuss with prospective lenders or arrangers prior to structuring a securitisation.
A Hong Kong court has refused to sanction a scheme of arrangement, saying that practitioners should explain the key terms and effect of any proposed restructuring in a way which can be easily understood by the creditors and the court.
In Re Sino Oiland Gas Holdings Ltd [2024] HKCFI 1135, the Honourable Madam Justice Linda Chan refused to sanction a scheme of arrangement, saying that creditors had been given insufficient information about the restructuring and the scheme that would enable them to make an informed decision at the scheme meeting.
The Hong Kong Court of Appeal has finally laid to rest the vexed issue of whether an arbitration agreement or a winding-up petition should take precedence in an insolvency situation. In two parallel decisions, the Court of Appeal ruled that an arbitration agreement should be treated in the same way as an exclusive jurisdiction clause and that the principle should be given a wide interpretation.
Is it Groundhog Day for private equity backed companies struggling to cope with higher interest rates, or is it different this time? The attempts to curb inflation flowing from the re-opening of the global economy after the Covid pandemic and the war in Ukraine have seen interest rates rise globally. In this article we look back at the response to financial distress in private equity backed companies during the global financial crisis of 2007-2009 and ask if it is different this time?
The Hong Kong High Court has given a rare order for modifications to a scheme of arrangement after it had been implemented incorrectly by the scheme administrators. Drawing on instances in which the English courts have sanctioned modifications after approval by scheme creditors, the court held that the same principles apply here.