Covid-19 will result in many businesses facing serious cash flow issues and coming under pressure from its creditors. Examinership may be an option available to assist failing companies in certain circumstances.
Reasonable Prospect of Survival
The insolvent company must demonstrate it has a reasonable prospect of survival. The process will provide the company with Court protection for a period of time to allow it to continue to trade its way out of the difficulties. This period can provide the company with some necessary breathing space.
Petition
A Petition for Examinership can be brought by various stakeholders. It is presented to the Court by way of an ex-parte application seeking protection which, if granted, lasts for a period of 70 days (extendable to 100 days).
The Petition must be supported with an Independent Expert Report from an independent professional (ie. an accountant) confirming the company’s financial affairs and determining that there is a reasonable prospect of survival, and that the creditors will do better out of the examinership process that in liquidation.
Formulating Scheme of Arrangement
If the Petition is successful, an Examiner is appointed to prepare a Scheme of Arrangement to ensure the survival of the company.
The Scheme of Arrangement may involve many restructuring measures of debt and also may be reliant on investors coming on board to inject capital into the company.
The Scheme of Arrangement formulated by the Examiner will then be put to the creditors and shareholders of the company. Thereafter, the Scheme of Arrangement will be presented to the Court and creditors will have an opportunity to make submissions on it.
The Court may approve, amend or reject the proposed Scheme of Arrangement. If the Court approves it, the Scheme of Arrangement will become binding on all parties. If the Court reject the proposal, the Court may wind up the company.
Conclusion
Struggling companies should note that Examinership may be a viable option for them to avoid liquidation and continue to trade. Please contact the Insolvency Department in Anthony Joyce & Co Solicitors to discuss the examinership process and your company’s suitability.
