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

Chapter 6 : Business Rescue and Compromise with Creditors

Part D : Development and approval of business rescue plan

152. Consideration of business rescue plan

 

(1) At a meeting convened in terms of section 151, the practitioner must—
(a) introduce the proposed business rescue plan for consideration by the creditors and if, applicable, by the shareholders;
(b) inform the meeting whether the practitioner continues to believe that there is a reasonable prospect of the company being rescued;
(c) provide an opportunity for the employees’ representatives to address the meeting;
(d) invite discussion, and entertain and conduct a vote, on any motions to—
(i) amend the proposed plan, in any manner moved and seconded by holders of creditors’ voting interests, and satisfactory to the practitioner; or
(ii) direct the practitioner to adjourn the meeting in order to revise the plan for further consideration; and
(e) call for a vote for preliminary approval of the proposed plan, as amended if applicable, unless the meeting has first been adjourned in accordance with paragraph (d)(ii).

 

(2) In a vote called in terms of subsection (1)(e), the proposed business rescue plan will be approved on a preliminary basis if—
(a) it was supported by the holders of more than 75% of the creditors’ voting interests that were voted; and
(b) the votes in support of the proposed plan included at least 50% of the independent creditors’ voting interests, if any, that were voted.

 

(3) If a proposed business rescue plan—
(a) is not approved on a preliminary basis, as contemplated in subsection (2), the plan is rejected, and may be considered further only in terms of section 153;
(b) does not alter the rights of the holders of any class of the company’s securities, approval of that plan on a preliminary basis in terms of subsection (2) constitutes also the final adoption of that plan, subject to satisfaction of any conditions on which that plan is contingent; or
(c) does alter the rights of any class of holders of the company’s securities—
(i) the practitioner must immediately hold a meeting of holders of the class, or classes of securities who rights would be altered by the plan, and call for a vote by them to approve the adoption of the proposed business rescue plan; and
(ii) if, in a vote contemplated in subparagraph (i), a majority of the voting rights that were exercised—
(aa) support adoption of the plan, it will have been finally adopted, subject only to satisfaction of any conditions on which it is contingent; or
(bb) oppose adoption of the plan, the plan is rejected, and may be considered further only in terms of section 153.

 

(4) A business rescue plan that has been adopted is binding on the company, and on each of the creditors of the company and every holder of the company’s securities, whether or not such a person—
(a) was present at the meeting;
(b) voted in favour of adoption of the plan; or
(c) in the case of creditors, had proven their claims against the company.

 

(5) The company, under the direction of the practitioner, must take all necessary steps to—
(a) attempt to satisfy any conditions on which the business rescue plan is contingent; and
(b) implement the plan as adopted.

 

(6) To the extent necessary to implement an adopted business rescue plan—
(a) the practitioner may, in accordance with that plan, determine the consideration for, and issue, any authorised securities of the company, despite section 38 or 40 to the contrary; and
(b) if the business rescue plan was approved by the shareholders of the company, as contemplated in subsection (3)(c), the practitioner may amend the company’s Memorandum of Incorporation to authorise, and determine the preferences, rights, limitations and other terms of, any securities that are not otherwise authorised, but are contemplated to be issued in terms of the business rescue plan, despite any provision of section 16, 36 or 37 to the contrary.

 

(7) Except to the extent that an approved business rescue plan provides otherwise, a pre-emptive right of any shareholder of the company, as contemplated in section 39, does not apply with respect to an issue of shares by the company in terms of the business rescue plan.

 

(8) When the business rescue plan has been substantially implemented, the practitioner must file a notice of the substantial implementation of the business rescue plan.