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Administrations are primarily geared towards promoting the recovery of companies that are likely to become insolvent. The Administrator has the power to trade the Company to achieve a sale of the business. On occasion, a ‘Pre-Pack’ sale with a connected party, will have been negotiated prior to the Administration and concluded shortly after the Administrator’s appointment.
A moratorium will be created once a Notice of Intention has been served in Court and this prevents assets from being recovered by execution creditors or any legal process being continued against the Company, without the permission of the Administrator or Court.
An Administrator must perform his function and achieve one of the three tertiary purposes:-
a. To rescue the Company as a going concern;
b. To achieve a better result for creditors as a whole than in a liquidation scenario;
c. To realise the Company’s property in order to make a distribution to its preferential and secured creditors.
Why should a Company go into Administration?
Here are the reasons why a company might go into administration:
- A QFC or Qualifying Floating Charge holder, might appoint an Administrator if the company has breached the terms of its covenant or loan agreement.
- The directors may have concerns over the potential enforcement by execution creditors over company assets which could jeopardise trading. An Administration initiated by Directors will ensure that Moratorium will protect the Company assets until the business can be sold.
- The shareholders may have opposing views to certain directors and with no alternative to settle the dispute, might consider appointing an Administrator.
- A Pre-Pack Administration sale of the business will ensure that there is a seamless transaction ensuring that the continuity of the business can be protected whilst at the same time preserving the Company’s goodwill.
What is the process when a company goes into administration?
Stage 1- The process of placing a Company into Administration
i) Out of Court Application
Director / Shareholder
As a shareholder or director, one can appoint an Administrator by convening either a shareholders’ or Directors’ meeting to approve the decision. A Notice of Intention to Appoint an Administrator is filed in Court.
The filing of the Notice will trigger moratorium and allow a grace period of 10 days in which the Directors’ will need to formally appoint an Administrator.
During the initial 5 day period, a QFC will also have a right to appoint their own Administrator or alternatively consent to the Shareholders’ and Directors’ choice of Administrator.
Qualifying Floating Charge holder
Alternatively, the QFC can also apply to appoint an Administrator via an Out of Court process, if they have made a formal demand against the Company and it remains unsatisfied.
Should there be a prior QFC registered at Companies House, then notice is served on the prior QFC in the event that they wish to appoint their own Administrator.
ii) Court Application
Depending on the given set of circumstances, an Out of Court appointment might not be possible and therefore an Administration Order will be sought at a Court hearing.
The following parties can appoint an Administrator through the Court:-
- The Directors’ might apply for the appointment of an Administrator should a winding up petition have been served against the company.
- A QFC might apply in the circumstances whereby the Company is already in liquidation.
- The Company shareholders apply on the basis that an Administrator needs to be appointed on just and equitable grounds as there is a dispute between shareholders.
- Creditors may apply for an application for the appointment of an Administrator on the grounds that the Company cannot pay debts as they fall due.
- The Liquidator of the Company can apply for the Company to enter into Administration.
- The Supervisor of a CVA might be required to fail a CVA and exit into an Administration.
Stage 2 – Sale of the Business
The Administrator will appoint professional qualified agents to prepare valuation reports based on going concern values of the business and make recommendations on the method of disposal of the business.
Alternatively, the Administrator might consider a ‘Pre-Pack Administration’ as the best strategy. This is a deal for the sale of the business and assets which is put in place prior to the Administration, but, executed shortly after appointment.
If the conditions are appropriate, a Pre-Pack can be advantageous as the business can be sold without negative publicity, which could destroy the value of the business and lead to loss of customers and staff. It can also be used where there is a lack of funds available to keep the business trading whilst the Administrator looks for potential buyers.
However, the lack of transparency of the Pre-Pack has opened the process up to criticism. This lack of transparency is perceived as particularly acute where the purchaser has a significant prior connection to the Company.
A “Pre-Pack Pool” has been introduced allowing an independent party review of the proposed sale and offers an opinion on the appropriateness of the grounds for the sale. Its function is therefore to provide creditors with additional assurances that a proposed purchase to connected parties, was not unreasonable.
Stage 3 – The Administrator’s Proposal
Once appointed, the Administrator will deal with the formalities of appointment by notifying all creditors of the insolvency as soon as reasonably practicable.
If this is a “Pre-Pack” sale of the business, the Administrator will need to circulate a more detailed report to creditors in accordance with Statement of Insolvency Practice 16 (SIP 16).
The Administrator will have a period of 8 weeks in which to issue a Proposal to the Company’s creditors which sets out the strategy of the Administration.
The Proposal will include how the Administrator intends to deal with the assets of the Company; explain the purpose of the Administration; provide a Director’s Statement of Affairs; provide Creditors with an estimated outcome statement and deal with the exit strategy of the Administration.
Should the Administrator be of the opinion that unsecured creditors will receive a dividend, the Administrator will invite all creditors’ to a meeting at which the Proposal is considered. Notice of this meeting is contained within the Proposal and is convened within 14 days of the Proposal being circulated to creditors’.
Creditors’ have the right to attend the meeting either in person or alternatively by proxy and can either agree to the Administrator’s Proposal or alternatively modify or reject them.
Providing the Proposal is accepted the Administrator will be able to continue the role and function in order to fulfil the objectives of the Administration.
However, should the Proposal be rejected, then the Administrator may need to consider to bring the Administration to an end.
If in the Administrator’s opinion there will only be a distribution to one or more secured creditor and/or preferential creditors or only a dividend to the unsecured creditors from the Prescribed Part fund, then there is no need to convene a meeting of creditors’. Instead, the Proposals will be deemed approved.
Stage 4 – What happens during the Administration?
The Administrator will conduct the affairs of the Company in line with the agreed Proposal and will report to creditors on a six monthly basis giving an update on the progress of the case.
The Administration can last for a period of a year, however it can be extended for longer, with the consent of creditors or the Court.
Following the sale of the business or realisation of assets, the Administrator will declare a dividend and pay any QFC or preferential creditor in part or in full.
If funds permit, the Administrator may also declare a dividend to unsecured creditors in relation to any claims under their Prescribed Part. However, the Administrator is unable to make a dividend to unsecured creditors in excess of this Prescribed Part.
Stage 5 - Exit Strategy
The Administration can come to an end in a number of ways:-
The Administrator may apply for the Company to be dissolved. If there are no assets left in the estate having already made distributions to either the QFC, preferential creditors or unsecured creditors (from the Prescribed Part), the Administrator will file a notice of dissolution at Companies House.
If there are funds available for unsecured creditors (excluding the Prescribed Part) which require distributing, then the Administrator will move the Company into a Creditors Voluntary Liquidation to allow this distribution to be paid.
The Administrator’s Proposal may have provided for a mechanism to allow the Company to exit into a CVA provided that the 75 % requisite majority of creditors voting in favour of the Proposal are passed.
The Administrator can petition the winding up of the Company on the basis that there are potential misfeasance claims and antecedent transactions that require further investigation by the Official Receiver.