Uitspraak
AMSTERDAM DISTRICT COURT
Netherlands Commercial Court
NCC District Court – Court in Summary Proceedings
Case number: NCC 19/003 (C/13/661952)
Judgment
8 March 2019
Applicant:
ELAVON FINANCIAL SERVICES DAC, Dublin (Ireland),
ELAVON FINANCIAL SERVICES DAC, Dublin (Ireland),
represented by S.W. van den Berg and L.P Kortmann, lawyers
Interested parties:
1.
I.P.S. HOLDING B.V., Drunen (the Netherlands)
I.P.S. HOLDING B.V., Drunen (the Netherlands)
represented by P.P.G. Jongen (on behalf of M. Wolters), lawyer
2.
I.P.S. B.V., Vlijmen (the Netherlands)
I.P.S. B.V., Vlijmen (the Netherlands)
represented by P.P.G. Jongen (on behalf of M. Wolters), lawyer
3.
CROSSBOW ACQUISITION COMPANY B.V., Amsterdam (the Netherlands) represented by B.F.H. Rumora-Scheltema and T.H.D. Struycken, lawyers
CROSSBOW ACQUISITION COMPANY B.V., Amsterdam (the Netherlands) represented by B.F.H. Rumora-Scheltema and T.H.D. Struycken, lawyers
4.
COÖPERATIEVE RABOBANK U.A., Amsterdam (the Netherlands)
COÖPERATIEVE RABOBANK U.A., Amsterdam (the Netherlands)
represented by A. Kuitenbrouwer, lawyer
5.
AIROPACK TECHNOLOGY GROUP AG, Baar (Switzerland) (did not appear)
AIROPACK TECHNOLOGY GROUP AG, Baar (Switzerland) (did not appear)
6.
Q-INVEST B.V., Vlijmen (the Netherlands), represented by F. Eikelboom, lawyer
Q-INVEST B.V., Vlijmen (the Netherlands), represented by F. Eikelboom, lawyer
The applicant and interested parties 1 through 6 are referred to below as Elavon, IPS Holding, the Company, Crossbow, Rabobank, Swiss Parent and Q-Invest, respectively. IPS Holding and the Company are referred to collectively as the IPS entities. Counsel are members of the Netherlands Bar Association (the term “lawyer” above has the meaning as defined in article 3.1.1 NCCR).
Contents
Summary
Defined terms
Procedural history
Background facts
The application
Discussion
- Jurisdiction, applicable law and related matters
- Interested parties
- The Swiss Parent/Administrator defence and the expropriation defence
- The issue is whether the price is right
7. Conclusion and order
Signature pages
1.Summary
The Company is a 100% subsidiary of IPS Holding, which itself is a 100% subsidiary of the Swiss Parent. Funding was provided to this group, with guarantees from various entities including IPS Holding. IPS Holding provided collateral: a pledge in respect of shares and receivables. The Company’s position is distressed. It is in default. Crossbow has accelerated the debt that it holds.
In the application, Elavon (acting for Crossbow) sought an order under article 3:251(1) CC permitting the sale of pledged shares and receivables to Crossbow in a private transaction that is a debt-for-equity swap.
The issue is whether the price is right. Elavon referred to a valuation report. It is uncontested. Elavon’s conclusion is that the contemplated transaction will deliver the highest value for the pledged shares and receivables and facilitate the business’s recovery. I agree. There are no successful defences. Accordingly, I will give the appropriate order.
2.Defined terms
The following defined terms are used in this judgment:
Agent: Elavon acting as agent to Crossbow
Administrator: Dr Daniel Hunkeler, appointed by the Zug Cantonal Court for the Swiss Parent
Apollo: Apollo Global Management LLC or various funds managed by this company
A&M: Alvarez & Marsal Valuation Services LLP
A&M Report or Report: Valuation of the Company by A&M, 6 February 2019, exhibit 16 to the application
CC and CCP: Civil Code and Code of Civil Procedure (in force in the Netherlands)
CRP: Comprehensive Recapitalisation Plan, set out in a Term Sheet
ELF: Emergency Liquidity Facility
Facilities Agreement: A series of loans provided to the Company by Apollo (Senior Loans, resulting in Senior Debt, later transferred to Crossbow, which is now the Senior Lender) and Rabobank (Super Senior Loans); exhibit 4 to the application
Greenhill: Greenhill & Co. International LLP
Group: The Swiss Parent’s group of companies; IPS Holding is a 100% Swiss Parent subsidiary, and the Company is a 100% IPS Holding subsidiary
Lenders: Apollo/Crossbow and Rabobank (and perhaps others)
NCC agreement: An agreement expressly stating proceedings will be in English before the NCC (article 1.3.1(d) NCCR)
NCCR: NCC Rules,
Staatscourant2018, 71572, 20 December 2018
Staatscourant2018, 71572, 20 December 2018
Pledge: Security right granted by IPS Holding (in respect of the Shares and the Receivables) and enforced by the Agent/Pledgee; exhibits 6-8 to the application
Pledgee and Pledgor: Elavon and IPS Holding, respectively
Receivables: Debt owed by the Company to IPS Holding [1]
Senior Debt: Owed under the Senior Loans
Senior Loans: Loans provided by Apollo to the Group, and transferred to Crossbow (an Apollo vehicle, now the Senior Lender)
SPA: Proposed Share Purchase Agreement enforcing the Pledge, the Shares being sold to Crossbow; exhibit 1 to the application
Shares: Shares in the Company’s capital
Super Senior Loans: Loans provided by Rabobank (Super Senior Lender) to the Group.
3.Procedural history
Following Elavon’s application and Q-Invest’s statement of defence, a hearing was held on Monday, 18 February 2019, at 10:30 AM at the Palace of Justice, IJdok, Amsterdam. Rabobank notified the court in advance by letter that its representatives would not speak at the hearing. Elavon filed a concise statement on certain points as directed. Counsel to Elavon, Crossbow, the IPS entities and Q-Invest spoke at the hearing. A court record was prepared separately of what was said and done at the hearing. Crossbow (Ms Rumora-Scheltema) provided comments. I gave directions on Tuesday morning, 19 February 2019, to the effect that the Swiss Parent and the Administrator be given an opportunity to be heard at a hearing to be held on Tuesday, 26 February 2019, for that purpose and for a general update on any developments in the interim. On Monday, 25 February 2019, the parties notified the court that there was nothing further to discuss. The Swiss Parent and the Administrator notified the court that they would not be at the hearing. They also wrote that they do not contest the pledges and the default and that they urge the court to make a careful enquiry on the determination of the purchase price for the Shares. In these circumstances, I cancelled the hearing and notified the parties that I would give the judgment in the matter on Friday, 8 March 2019.
4.Background facts
4.1.
The A&M Report includes this undisputed “general description” of the business:
General description of ATG
Airopack Technology Group AG is a holding company organised in accordance with Swiss law and holds all the companies belonging to the Airopack Group either directly or indirectly. The entire Group is operationally managed by the Group Management. Airopack Group currently is active in one business segment.The holding company, with statutory seat in Baar, Switzerland, is the only listed company of the Airopack Group. The registered shares of Airopack Technology Group AG are listed on SIX Swiss Exchange (Ticker: AIRN / ISIN: CH 024 260 694 2). The market capitalisation of the Company as of 31 December 2018 amounted to CHF 43.7m (c.€38.8m) and CHF 15.2m (c.€13.3m) as of 1 February 2019 (source: S&P Capital IQ).
Airopack Group provides mechanical and pressure-controlled primary packaging technologies and dispensing systems for the manufacturers and suppliers of cosmetics, body care, pharmaceutical, and food products in Europe and North America. The Airopack technology offers all-plastic pressurised dispensers that use normal compressed air, which results in dispensing a formulation at constant pressure. It also engages the provision of sales and support services.
The Company was formerly known as IPS Innovative Packaging Solutions AG and changed its name to Airopack Technology Group AG in May 2014.
The Company is headquartered in Waalwijk, the Netherlands.
As of 31 December 2018, the assets of the Company were mainly financed by loans from the Apollo Funds (c.€132m) and Rabobank bank loans (c.€15m) through a “Facilities Agreement”, dated 30 November 2018, other bank loans (c.€3m), leasing (c.€28m) and a loan from a third party resulting from the settlement of the IP purchase price (c.€22m).
The main shareholders in the Company are Q-Invest/ [former CEO's family] , Apollo Global Management LLC, and LB (Swiss) Investment AG.
The Group is structured such that IPS Holding is a 100% subsidiary of the Swiss Parent, and the Company is a 100% subsidiary of IPS Holding. There is no dispute that IPS Holding has no substantial business activities other than holding the Shares. [2]
4.2.
The Company/Group has a history of successive rounds of significant investment. Initially, the [former CEO's family] was instrumental in setting up the business and supplying capital. [3] [former Group CEO] is the Group founder. He served as Group CEO through late 2018. The [former CEO's family] investment vehicle, Q-Invest, currently holds 29.8% of the shares in the Swiss Parent’s capital. Next, Apollo made substantial investments in a series of documents known as the Facilities Agreement, acquiring 22% of the shares in the Swiss Parent’s capital and holding over € 132 million in aggregate principal debt (the Senior Debt). [4] Finally, Rabobank also supplied funding under a Facilities Agreement, currently holding over € 15 million in debt (under the Super Senior Loans). [5]
4.3.
Such substantial funding obviously required collateral. It was provided in a security package. [6] As part of this package, IPS Holding granted the Pledge to Apollo and Rabobank in respect of the Shares and the Receivables. IPS Holding, the Swiss Parent and other Group entities provided guarantees for the Senior Loans.
4.4.
It is common ground that the business has high potential, but is in distress. In recent years, the Group has consistently failed to meet financial targets as defined in business plans. [7] Recovery has been elusive. The Company has struggled to comply with its obligations under the Senior Loans. In late 2018, Greenhill [8] explored opportunities for a sale process, or alternatively restructuring or refinancing options. This process was unsuccessful as there was ultimately no interest by outside parties in any of these options. The CRP was initiated, seeking substantial new capital, but this too was unsuccessful. [9]
4.5.
On 31 January 2019, the Company failed to make an interest payment under the Facilities Agreement. In addition, on that date the Company failed to meet an EBITDA target under this agreement. [10] On 9 February 2019, Apollo transferred the Senior Loans to Crossbow (an Apollo vehicle, now the Senior Lender). [11] On that date, Crossbow provided a € 25 million emergency liquidity facility (the ELF), of which the Company drew € 15 million within two days. [12] On the same date, Elavon (acting as Agent and as Pledgee) sent a notice to the Swiss Parent accelerating the Senior Debt except for the ELF. [13] The total debt owed to Apollo/Crossbow and Rabobank was over € 147 million at that time (excluding interest, costs and the ELF). [14] It is noteworthy that Rabobank was not authorised to take enforcement action at that time. [15]
4.6.
Crossbow instructed Elavon to enforce the pledge. The Swiss Parent instructed A&M, who prepared their Report on the valuation of the Company. Elavon prepared draft transaction documentation for a debt-for-equity swap (the SPA). The proposed transaction has these four main features: [16]
- a) Crossbow acquires the Shares as well as the Receivables (Elavon acting as seller);
- b) Crossbow pays the Pledgee (Elavon) € 1 plus an amount equal to (i) enforcement costs (including what is owed to the Pledgee and the Lenders), to be determined shortly before completion, and (ii) whatever is owed to the Super Senior Lender (Rabobank) under the Super Senior Loans, if and to the extent Rabobank decides not to continue funding the Group after the transaction. These payments reduce the Pledgor’s (IPS Holding’s) liabilities.
- c) Crossbow will grant the Pledgor a release such that the Pledgor’s guarantee obligations in respect of the Senior Lender (Crossbow) are not more than € 15 million (Senior Loans) (nothing being owed in respect of the ELF).
( d) The Pledgor’s guarantee for the Super Senior Loans will remain in place (but is manageable given Crossbow’s commitment under (b)(ii) above).
The Swiss Parent announced its intention to file an application for a provisional composition moratorium in the Zug Cantonal Court. [18]
4.7.
Elavon, Crossbow, Rabobank and the IPS entities signed an agreement, expressly stating that the proceedings will be in English before the NCC. Elavon filed the article 3:251(1) CC application with the NCC/CSP (Court in Summary Proceedings), requesting permission to enforce the pledge and execute the transaction summarised above under 4.6.
4.8.
The Zug Cantonal Court ordered a provisional composition moratorium (
provisorische Nachlassstundung) in respect of the Swiss Parent on 12 February 2019, appointing Dr Hunkeler as Administrator. [19]
provisorische Nachlassstundung) in respect of the Swiss Parent on 12 February 2019, appointing Dr Hunkeler as Administrator. [19]
5.The application
5.1.
In the application, acting in its capacity as Pledgee, Elavon sought an order under article 3:251(1) CC permitting the sale of the Shares (and Receivables) in a private transaction that is a debt-for-equity swap.
5.2.
Elavon’s argument is that the Company’s position is distressed. The Company is in default. The Senior Debt has been accelerated. The Pledge is admitted. Elavon submits that the proposed transaction will deliver maximum value for the Shares and help the business in its efforts to recover.
6.Discussion
Jurisdiction, applicable law and related matters
6.1.
The first point I am called upon to examine in this case is the jurisdiction of the Amsterdam District Court.
6.2.
It is clear, in my view, that the Amsterdam District Court has jurisdiction under articles 25(1) and 26(1) of the Brussels Regulation (recast) (1215/2012) and article 24 of the Lugano Convention. [20] There is a choice-of-court clause in the Pledge documentation. [21] The parties (except for the Swiss Parent and Q-Invest) signed a choice-of-court agreement prior to the application. [22] All of the parties either entered an appearance or sent a similar notice [23] acknowledging the proceedings without objection as to jurisdiction. At the hearing, counsel representing Elavon, Crossbow, Rabobank, the IPS entities and Q-Invest expressly confirmed that this court should deal with the matter in any event. [24]
6.3.
The next point is articles 1.3.1 and 1.3.2 NCCR. These articles reflect article 30r CCP, which is the statutory framework for proceedings to be in English before the NCC/CSP. I am satisfied all of these requirements are met.
- a) Article 1.3.1(a) NCCR. This is a civil or commercial matter, the pledge is a particular legal relationship within the parties’ autonomy and the matter is not subject to Subdistrict Court jurisdiction or to the exclusive jurisdiction of any other chamber or court.
- b) Article 1.3.1(b) NCCR. The application obviously involves a matter of international dimensions. To begin with, Elavon is based in Ireland and the IPS entities are part of a Swiss-based group. That is enough to make this case an international dispute. But that is not all. Apollo/Crossbow and Rabobank have international activities and the Group’s business operates (or plans to operate) in international markets for pressurised dispensers in Europe and North America.
- c) Article 1.3.1(c) NCCR. The matter of jurisdiction was dealt with above.
- d) Article 1.3.1(d) NCCR. Elavon, Crossbow, Rabobank and the IPS entities signed a pre-application agreement. I am satisfied that it is a valid NCC agreement. It expressly states that the proceedings will be in English before the NCC (constituted as a chamber of the Amsterdam District Court). While it is true that the Swiss Parent and Q-Invest did not sign that agreement, in their communications with the court they did not raise any objections as to the language of the proceedings or the chamber of the Amsterdam District Court dealing with the case. In fact, at the hearing counsel for Q-Invest confirmed the case should be dealt with by the NCC in English. In light of the above, the parties should be allowed to conduct the proceedings in English before the NCC, as they obviously wish to do so.
( e) Article 1.3.2(a) is not an issue here. The CSP is designated in article 3:251 CC as the appropriate forum for this type of application.
6.4.
The official copy of each document in the proceedings was submitted in hard copy. In addition, counsel have affirmed their consent to use eNCC on a voluntary basis. No one has objected to this. eNCC has been used in this matter on that basis.
6.5.
The last point I should address in this section is the matter of applicable law. As set out above, the issue in this case is whether or not to permit Elavon to sell and transfer the Shares in a private transaction involving a debt-for-equity swap. My work in this matter is a summary enquiry. In this context, I will apply Dutch company and property law. The Company’s statutory seat is in the Netherlands and Dutch law therefore provides the company and property law rules in respect of the Shares. [27] However, under the relevant contractual arrangements, English law governs the Facilities Agreement, and Dutch law governs the Pledge documents. [28] I will apply the law chosen by the parties to govern their respective agreements. [29]
Interested parties
6.6.
In the application and at the hearing, Elavon and Crossbow suggested that Q-Invest and the Swiss Parent lack a sufficient interest to justify allowing them to participate in these proceedings. The standard I must apply is whether Q-Invest’s and the Swiss Parent’s interests are sufficient to warrant their participation in the proceedings, given the potential impact of the judgment on them and any other way they may be affected by the subject matter that is dealt with in the proceedings. [30] Applying this standard, I find Q-Invest and the Swiss Parent should be allowed to participate. IPS Holding has no business activities other than holding the Shares. This means the proposed transaction, selling and transferring the Shares to Crossbow, has a direct impact on the entities at the Swiss Parent shareholder level (where the decisions on matters such as management and funding are ultimately made). Also, virtually all of the business value in the Group is in the Company. As a result, the transaction will, if executed, permanently remove most or all of the business value from the Group and transfer it to a rival Swiss Parent shareholder (Crossbow/Apollo). In addition, the Swiss Parent is a guarantor [31] under the Facilities Agreement and it is in a moratorium process in Switzerland. It is important for there to be no undue interference with that process. For these reasons, the Swiss Parent and Q-Invest were given the opportunity to participate. This caused no undue delay. The Swiss Parent did not submit a defence or attend a hearing, but Q-Invest’s remarks in its defence and at the hearing were constructive and helpful to grasp the issues in the case.
The Swiss Parent/Administrator defence and the expropriation defence
6.7.
Two defences must be dealt with at this stage before I focus on the issue of valuation.
6.8.
The first defence, presented by Q-Invest and the IPS entities (Mr Eikelboom and Mr Jongen, respectively), is that the Swiss Parent and the Administrator should be consulted on matters such as the current status and business requirements going forward, what should be done with the Shares and how to generate more value. There is no need for me to consider this defence. The Swiss Parent and the Administrator have written to the court acknowledging the Senior Debt, the default and the Pledge, asking the court to review the valuation carefully, and noting that the court has all the information required to make a determination on the valuation. Their views are clear. There is no need for further consultation. No issues arise as to potential interference with the Administrator’s work or the Zug Cantonal Court order for the provisional moratorium. The Swiss Parent and the Administrator have presented no rival or alternative plans as to the future of the business.
6.9.
The second defence, as raised by Q-Invest, [32] is that the proposed transaction involves an expropriation that is illegal under protection-of-property rules in Article 1 of Protocol no. 1 to the European Convention on Human Rights. I reject this defence. The proposed enforcement of security rights is based on article 3:251(1) CC. In light of everything said in this judgment, it is manifestly lawful, in the public interest, in accordance with relevant international law principles and reasonably proportionate. Nothing has been said that suggests otherwise.
The issue is whether the price is right
6.10.
The discussion above brings me to the material issue in this case. It is whether the price is right. Article 3:251(1) CC mandates a review of this issue, as an order is sought permitting the sale of the Shares in a private transaction (as opposed to a public auction).
6.11.
Elavon’s argument is that the transaction provides maximum value as it will result in over € 117.4 million in reductions in IPS Holding liabilities under the Facilities Agreement [33] (or, as I understand it, even more, since IPS Holding will no longer be responsible for the ELF, as Crossbow (Ms Rumora-Scheltema) clarified at the hearing).
6.12.
The IPS entities (Mr Jongen) raised two points I must address at this stage. First, Mr Jongen asked whether an English law opinion should be sought as to the legal effect of the proposed transaction, since certain aspects such as the proposed release [34] may be governed by English law. I appreciate the point, but in this case I see no need for such an opinion. The transaction documentation is uncontested. Nothing in the record suggests the documentation could mean anything other than what it says (as elucidated by Elavon in the application: paragraph 4.6 above). Second, Mr Jongen questioned whether the proposed release is appropriate since this is unfavourable compared to a set-off arrangement (which operates automatically and immediately). This point does not give me concern. Mr Jongen referred to the extinguishing of the debt after the acquisition of the Shares. This appears to be an accurate statement of the proposal. But this process is an irrevocable and unconditional undertaking by the Senior Lender. [35] Elavon has unequivocally stated how the transaction will work. [36] I have no doubt Elavon will punctiliously follow this course of action. There is nothing in the record to suggest otherwise. Effective legal remedies are available, should they be required.
6.13.
I now turn to the issue of valuation. The A&M Report is the controlling document. In preparing their report, A&M assumed that information provided by the Swiss Parent was accurate and reliable. Nothing in the record suggests this approach is inappropriate. Ms Rumora-Scheltema (Crossbow) explained that the irregularities she referred to were unrelated to the assumptions in the A&M Report. This is undisputed.
6.14.
As requested, Elavon submitted a concise and undisputed statement on A&M’s qualifications and enquiry. This is what Elavon wrote: [37]
Alvarez & Marsal Valuation Services LLP ("A&M") made an independent assessment of the value of I.P.S. B.V. and its subsidiaries as at 1 January 2019. The valuation was commissioned independently by the Swiss Parent, after a recommendation from Apollo.
A&M is one of world's leading valuators and turnaround experts, and is specialized in distressed situations. A&M is part of the Alvarez & Marsal group. According to Bloomberg, Alvarez & Marsal, LLC "offers turnaround advisory, crisis and interim management, process improvement, creditor advisory, corporate finance, and transaction advisory services. Additionally, it provides business consulting, real estate and tax advisory, dispute analysis, and forensics services. It caters to apparel, consumer products, education, energy, finance, retail, healthcare, transportation and manufacturing sectors. Alvarez & Marsal, LLC was founded in 1983 and is based in New York, New York with additional offices in Amsterdam, the Netherlands; Milan, Italy; Paris, France; Toronto, Canada; Shanghai, China; Wanchai, Hong Kong; Singapore; and London, United Kingdom."
The scope of the investigation by A&M, as commissioned by the Swiss Parent, is described on page 1 of the A&M report and entailed performance of an independent analysis to assess the enterprise value of I.P.S. B.V. and its subsidiaries and affiliates.
A&M performed the majority of its work in the period 9 January to 4 February 2019. During this period, it undertook several processes and procedures, as described on page 5 of the A&M report. Those processes and procedures included conducting interviews with management and others, analysis of the historical financial condition and operating results of the group and a peer analysis.
6.15.
A&M’s conclusions on page 10 of their Report include the following points:
Valuation conclusions
Going concern value summary
Our conclusions on Enterprise Value of IPS are derived from our valuation analysis, which is described in further detail in the section Valuation analysis, and are as follows:
a. Going concern value:
• Income Approach: €103.1m to €124.9m (Base Case: €113.5m)
• Market Approach: €95.0m to €125.0m
Our concluded Enterprise Value range in a going concern situation, based on the Income Approach and Market Approach, is €100.0m to €125.0m (rounded).
This Enterprise Value range assumes the full utilisation of the tax loss carry forward positions of IPS, effectively valued at €8.8m. Based on information provided by Management, the losses captured in deferred tax assets of Airopack B.V. were considered to be fully recoverable in the future, assuming a fiscal restructuring to recover these losses is successfully completed and that profits are recognised in the respective loss carry forward entities. We understand the carry forward losses are in the region of c.€63m as at the Valuation Date. It is further assumed that such fiscal restructuring is approved by the Dutch tax authorities. In absence of a successful and approved fiscal restructuring, such that the tax losses would not be recoverable by IPS, the concluded Enterprise Value would be lower.
Please note, this value range is implicit on the continued funding of the IPS business. Cash flow forecasts indicate a minimum capital requirement to be in excess of €35m over the two years following the Valuation Date. Without this funding, the Enterprise Value assessment is not valid.
b. No longer going concern, i.e. Liquidation Value:
• Liquidation Value, before liquidation costs (Cost Approach): €nil
Our high-level Liquidation Value estimate, which is slightly negative and therefore not meaningful, is before deduction of liquidation costs (such as severance payments, administrator fees, etc). As such, we conclude that the Liquidation Value would not result in a positive (post-cash) Gross Asset Value.
6.16.
In response to my request for a statement on Crossbow’s bid and any alternative ideas, bids or proposals, this is what Elavon wrote: [38]
(…) its aim is to achieve a capital structure for the Company wherein the financing obligations will be brought to an acceptable level, with in the long run an outlook for a better return for the shareholders.
The bid, if successful, would thus improve the balance between the debt and equity ratios of the Company from the point of view of the creditors (lenders) but also the shareholder. The intent is to recapitalize the business and allow it to continue trading as a going concern. This is much better than the alternative of a bankruptcy/liquidation and is better for employees, suppliers, customers, etc. Crossbow's intent is to rescue the business and use its operational expertise to undertake the challenge of turning it around.
The Pledgee is not aware of any alternative ideas, bids or proposals that are currently on the table, despite the fact that Swiss Parent, in consultation with the Senior Lender, has made it very clear to the market that investors were needed to turn around the distressed financial situation of the company. Relevant in this context are the following circumstances:
• In November 2017 the Swiss Parent attempted to find refinancing for the Apollo loans, but was unsuccessful.
• In the fall of 2018 the Swiss Parent attempted to find rescue financing or a buyer for the Airopack group, but no binding offers were received.
• It is common that following press releases about distressed companies, fortune hunters emerge who pretend to have an interest to buy but in reality are not serious buyers. And indeed, the Pledgee understands from Apollo that following the Swiss Parent’s press releases, Apollo and the ATG AG chairman were both separately contacted by one party, who appeared to be interested, but was not in a position to act and has not pursued any interests at this stage.
6.17.
In my analysis of the valuation, I note first that there is, essentially, consensus among the parties with regard to the accuracy and reliability of the A&M Report. No one has criticised A&M’s qualifications, assumptions, enquiry or report in a way that would cast doubt on their conclusions on such matters as the distress [39] the Company is in or the value delivered by the proposed transaction (in a reduction of Senior Debt).
6.18.
Next, there is no dispute that timing could be a critical factor influencing the valuation. The timing was raised at the hearing. Q-Invest (Mr Eikelboom) objected to the proposed enforcement, at least at this time, given the provisional composition moratorium. He said that a balancing exercise should be done, weighing Q-Invest and other Swiss Parent shareholder interests so as to be fair and equitable in exercising the court’s discretionary authority to rule on the application. [40] At the hearing, it became clear there may be an incipient shareholder dispute at the Swiss Parent level, pitting Apollo/Crossbow against the [former CEO's family] and Q-Invest. Mr Eikelboom said Apollo/Crossbow may have failed to contribute capital as agreed (in the ELF or the CRP/Term Sheet), resulting in a default or creditor default, [41] or the Swiss Parent may have failed to use available ELF/CRP funding to service the Senior Debt. He suggested the Swiss Parent and the Administrator should decide whether to enforce the ELF/CRP and collect additional funding (particularly since very few if any non-executive directors remain). Crossbow (Ms Rumora-Scheltema), in response, said the ELF was never intended to service existing Senior Debt. [42] She and Elavon (Mr Kortmann) said the CRP is irrelevant because the Company failed to meet agreed milestones. [43] That is why, they added, A&M did not assume full funding as contemplated under the CRP when A&M prepared their Report.
6.19.
As a matter of law, there is no doubt about the basic principle here. It is that Elavon (acting as Agent and Pledgee) is free to initiate the enforcement of the Pledge at a time of its choosing, provided the conditions are met (as they are here) and no exception applies (such as abuse of right). I note that the Swiss Parent, the Administrator and the IPS entities have acknowledged or admitted the Senior Debt, the default and the Pledge. Nothing in the record suggests the Swiss Parent or the Administrator have any interest in pursuing a claim under the ELF or CRP. There is no sufficient factual basis in the record to support Q-Invest’s assertion that the ELF/CRP could or should have been used in any other way or for any alternative purposes (such as servicing existing Senior Debt), or that A&M’s assumptions (no funding under the CRP) [44] are flawed. At the hearing, no detailed analysis of the documentation was presented and nothing substantial was said in response to Crossbow/Elavon’s points on what the ELF was intended to do and why the CRP is irrelevant (milestones not being met). What all of this means is that there are no facts in the record to suggest Elavon’s actions in this case are in any way abusive or otherwise inappropriate. As a result, I reject Q-Invest’s defence regarding enforcement and its timing, the balancing exercise, the ELF/CRP and the shareholder dispute at the Swiss Parent level.
6.20.
These points in no way diminish the very real impact the proposed enforcement could have on the Swiss Parent shareholders. It is clear that the proposed transaction at least nominally may take value away from them. This transaction will, if executed, permanently remove the Company from the Group, and the Group’s business value is virtually entirely in the Company. In fact, at the hearing, Elavon expressed its commitment to facilitate an “orderly liquidation” following the proposed sale (no significant business activities remaining in the Group at that stage). And a reduction of Senior Debt may of course not be fully equivalent to cash in these circumstances. But having reviewed the parties’ submissions and the documents in the record, I am convinced that in fact no shareholder value exists anyway. The debt owed to Apollo/Crossbow and Rabobank is such that the Swiss Parent shareholders are facing a bankruptcy/liquidation scenario with or without drastic measures such as the proposed transaction. No one has suggested a public auction would be a better option in any respect. In fact, the debt is such that no rival or alternative proposals have been received, despite sustained efforts. Nothing in the record suggests any such proposals may reasonably be anticipated anytime soon. In light of these points, the impact on the Swiss Parent shareholders is not an impediment to the proposed enforcement.
6.21.
Finally, I must consider the business. Elavon wrote in the application that the proposed transaction would be the best way forward for the business in terms of jobs, recovery and future prospects (the business meaning the activities in the Company). Crossbow and Rabobank agreed. [45] As a matter of law, I note that the interests of the business are subordinate to the interests of the Pledgee and other secured or unsecured creditors. However, within these constraints, I agree it is appropriate to consider what is best for the business. The transaction obviously does not guarantee the recovery that everyone involved would like to make happen. But I am convinced it is the best that can be hoped for in the difficult circumstances the business must operate in at this stage. The reduction of Senior Debt is significant (whether or not it is roughly equivalent to the Enterprise Value calculated by A&M) [46] and it is part of a business plan reviewed and tested by A&M. It holds out the prospect of future investment, which will be required soon. [47] No one has identified any alternative way to move forward in the business and to secure such funding in timely fashion, other than the proposed transaction (followed by funding subject to certain conditions). The impact on the business does not warrant any delay or change in the proposed transaction.
6.22.
For the above reasons, I am persuaded that the proposed transaction will deliver maximum value for the Shares in the circumstances. I have dealt with and rejected the defences that are material to the issue in the application. Accordingly, I will give the appropriate order as set out below. Counsel have agreed that costs will be allocated such that each party is ordered to bear its own costs.
7.Conclusion and order
THE COURT IN SUMMARY PROCEEDINGS
7.1.
Permission is granted for the Shares and Receivables to be sold and transferred to Crossbow (the Senior Lender) under the conditions as described in the SPA.
7.2.
Costs are allocated such that each party is ordered to bear its own costs.
7.3.
This judgment is enforceable notwithstanding appeal.
Done by L.S. Frakes, Judge, assisted by W.A. Visser, Clerk of the Court.
Issued in public on 8 March 2019.
APPROVED FOR DISTRIBUTION IN eNCC
THE SIGNED ORIGINAL IS IN THE HARD COPY FILE
SIGNATURE PAGE 1 OF 2
JUDGE
SIGNATURE PAGE 2 OF 2
CLERK OF THE COURT