Dissolution and consequential winding up, is a critical process in the life cycle of a company, marking its transition from active business operations into a state of liquidation eventually sealed by complete closure. Under Maltese law, the dissolution of companies is primarily governed by the Companies Act (Chapter 386 of the Laws of Malta, the “Act”), which provides a structured framework to ensure that the process is conducted fairly and efficiently.
On 15 May 2024, the Bermuda Court granted an order striking out a winding-up petition (the “Petition”), setting aside an earlier order appointing joint provisional liquidators (“JPLs”), and discharging the JPLs appointed over New Sparkle Roll International Group Limited (the “Company”), a Bermuda company listed on the Hong Kong Stock Exchange. The Company’s new board of directors (the “New Board”) was represented by Conyers.
Background
This briefing note provides an outline of the different processes of voluntary winding up and striking off under the Companies (Guernsey) Law, 2008 (as amended) (the “Law”).
Voluntary winding up
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The High Court has ordered two former directors of British Home Stores (BHS) to pay compensation of £110 million in respect of misfeasance claims brought by the former retailer’s liquidators (Wright v Chappell [2024] EWHC 2166 (Ch)).
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
As most readers know, Subchapter V of Chapter 11 is the small business reorganization provisions enacted in the Small Business Reorganization Act (SBRA) of 2019. SBRA made major changes to how small business cases are handled in an effort to streamline the process, reduce administrative expenses and result in more confirmed Chapter 11 plans. Prior to SBRA and even continuing after enactment of SBRA, small businesses could elect treatment as a small business debtor under Chapter 11.
The High Court has ordered two former directors of British Home Stores ("BHS") to pay equitable compensation of £110 million in respect of misfeasance claims brought by the former retailer's joint liquidators: Wright v Chappell [2024] EWHC 2166 (Ch).
Notwithstanding that the requisite statutory majority was obtained in the relevant creditors’ scheme meeting, the Hong Kong Companies Court refused to sanction a scheme of arrangement propounded by a company that professed to be insolvent in a recent judgment [2024] HKCFI 2216.
The A&O Shearman team, together with counsel Michael Lok and Jasmine Cheung, acted for the opposing creditor in these Scheme proceedings.
Dispute Resolution analysis: In a judgment which brings to a conclusion the trial of the former BHS directors, the Court has held the directors joint and severally liable for the increase in net deficiency of the company arising out of breaches of duty which caused the company to continue trading.
Wright and others v Chappell and others; Re BHS Group Limited [2024] EWHC 2166 (Ch)
What are the practical implications of this case?