[BANKRUPTCY, INSOLVENCY & REHABILITATION PROCEEDINGS IN THE NETHERLANDS] 79
Proceedings and has therefore automatic recognition in all EU countries (except Denmark and Ireland). The debtor or – if appointed – the restructuring expert proposes a private restructuring plan to (all or a subset of all) creditors and shareholders where the rights of these creditors of shareholders will be amended. Rights of employees cannot be amended under the WHOA. During the WHOA-procedure, the debtor has access to different supportive measures to enable restructuring, such as a suspension of bankruptcy, a stay period, a protection of security for new funding and the possibility to end or alter contracts. Contrary to bankruptcy, but similarly to suspension of payments, the rights of employees are protected, and employment contracts cannot be effected by the plan. The district court can be asked to lift pre- and post judgement attachments and for any other necessary tailor-made measures. The District Court can also be asked at an early stage for binding decisions regarding legal issues (such as voting rights, class placements, etc.) to avoid uncertainties later on the procedure. Creditors (or certain categories of creditors) are put in classes of similarity and vote within this on the acceptance of the plan. The plan is accepted by a class if 2/3 rd -majority of the amount of claims or issued capital of the actual voters have voted in favor of the plan. No dissenting creditor may receive less value then they would have in a bankruptcy situation
(best interest of creditors test). The court can be asked for confirmation of the plan if at least one in-the-money class has voted in favor the plan. Dissenting classes can be bound (cross class cram down) unless (i) the plan is in breach of the absolute priority rule, (ii) creditors that are small or medium enterprise are not offered an amount in cash that equals 20% of their claim and (iii) the plan lacks a cash exit-possibility for creditors (professional lender excluded). The voting can take place within a period eight days and electronic voting is allowed. The restructuring plan becomes binding, after confirmation by the court. A confirmation decision by the court takes place within eight to fourteen days after acceptance of the plan and the confirmation cannot be appealed. In theory, the procedure could be completed within a period of three to five weeks. The WHOA is the ultimate out of court and debtor-in-possession restructuring tool. It can involve the restructuring of contract and future liabilities, of (financial) debts and of shareholders. In its short existence, The WHOA has already proved to be a quick, flexible and (therefor) very effective tool of reorganization of debts and costs. Not only for large companies, but also for small companies. In order to create a more affordable WHOA for small companies, the court fees for the WHOA have been reduced recently (1 July 2025).
ILN Restructuring & Insolvency Group – Bankruptcy, Insolvency & Rehabilitation Series
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