Companies Act, 2008 (Act No. 71 of 2008)Chapter 6 : Business Rescue and Compromise with CreditorsPart D : Development and approval of business rescue plan153. Failure to adopt business rescue plan |
| (1) |
| (a) | If a business rescue plan has been rejected as contemplated in section 152(3)(a) or (c)(ii)(bb) the practitioner may— |
| (i) | seek a vote of approval from the holders of voting interests to prepare and publish a revised plan; or |
| (ii) | advise the meeting that the company will apply to a court to set aside the result of the vote by the holders of voting interests or shareholders, as the case may be, on the grounds that it was inappropriate. |
| (b) | If the practitioner does not take any action contemplated in paragraph (a)— |
| (i) | any affected person present at the meeting may— |
| (aa) | call for a vote of approval from the holders of voting interests requiring the practitioner to prepare and publish a revised plan; or |
| (bb) | apply to the court to set aside the result of the vote by the holders of voting interests or shareholders, as the case may be, on the grounds that it was inappropriate; or |
| (ii) | any affected person, or combination of affected persons, may make a binding offer to purchase the voting interests of one or more persons who opposed adoption of the business rescue plan, at a value independently and expertly determined, on the request of the practitioner, to be a fair and reasonable estimate of the return to that person, or those persons, if the company were to be liquidated. |
| (2) | If the practitioner, acting in terms of subsection (1)(a)(ii), or an affected person, acting in terms of subsection (1)(b)(i)(bb), informs the meeting that an application will be made to the court as contemplated in those provisions, the practitioner must adjourn the meeting— |
| (a) | for five business days, unless the contemplated application is made to the court during that time; or |
| (b) | until the court has disposed of the contemplated application. |
| (3) | If, on the request of the practitioner in terms of subsection (1)(a)(i), or a call by an affected person in terms of subsection (1)(b)(i)(aa), the meeting directs the practitioner to prepare and publish a revised business rescue plan— |
| (a) | the practitioner must— |
| (i) | conclude the meeting after that vote; and |
| (ii) | prepare and publish a new or revised business rescue plan within 10 business days; and |
| (b) | the provisions of this Part apply afresh to the publishing and consideration of that new or revised plan. |
| (4) | If an affected person makes an offer contemplated in subsection (1)(b)(ii), the practitioner must— |
| (a) | adjourn the meeting for no more than five business days, as necessary to afford the practitioner an opportunity to make any necessary revisions to the business rescue plan to appropriately reflect the results of the offer; and |
| (b) | set a date for resumption of the meeting, without further notice, at which the provisions of section 152 and this section will apply afresh. |
| (5) | If no person takes any action contemplated in subsection (1), the practitioner must promptly file a notice of the termination of the business rescue proceedings. |
| (6) | A holder of a voting interest, or a person acquiring that interest in terms of a binding offer, may apply to a court to review, re-appraise and re-value a determination by an independent expert in terms of subsection (1)(b)(ii). |
| (7) | On an application contemplated in subsection (1)(a)(ii), or (1)(b)(i)(bb), a court may order that the vote on a business rescue plan be set aside if the court is satisfied that it is reasonable and just to do so, having regard to- |
| (a) | the interests represented by the person or persons who voted against the proposed business rescue plan; |
| (b) | the provision, if any, made in the proposed business rescue plan with respect to the interests of that person or those persons; and |
| (c) | a fair and reasonable estimate of the return to that person, or those persons, if the company were to be liquidated. |