dir zuliebe...
hab versucht einfache, kurze passagen zu liefern. wer es nicht weiss: wir, ex-common shareholder sind class 12 (in the OBS, the one single share)
More recently, the Third Circuit dealt a blow to the use of giftsharing
arrangements in In re Armstrong World Industries, Inc.10
In that case, the gift-sharing issues focused on the plan’s treatment
of three classes: a class of general unsecured creditors
(Class 6), a class of holders of asbestos-related personal-injury
claims (Class 7), and a class of equity interests (Class 12). The
plan provided for the distribution of warrants to Class 12 equity
holders if all classes of creditors voted for the plan. To address
issues in achieving consensus, the plan also expressly contemplated
that unsecured creditors might vote against the plan, and
provided for an alternative mechanism for distributing the warrants
in that event. Specifi cally, if Class 6 voted to reject the plan,
the new warrants would be issued to the Class 7 asbestos claimants
and, in turn, the Class 7 claimants would automatically waive
receipt of the warrants, which would then be issued to the Class
12 shareholders.
A classic example of a gift scenario is one in which an undersecured creditor with a first priority all-assets lien negotiates with unsecured creditors to permit them to receive a distribution, despite the fact that administrative and priority creditors will not receive full payment. The case law on the permissibility of gift arrangements is largely unsettled and continues to develop.
Generally, the Bankruptcy Code establishes a waterfall for distribution of estate proceeds: secured creditors are paid first, then administrative creditors and priority claimants, then general unsecured creditors, and, finally, equity holders. Under the absolute priority rule, a plan is “fair and equitable” even if classes of unsecured creditors or equity holders do
not receive the full value of their claims and interests, if no class junior to each of them receives or retains anything of value under the plan on account of their claims or interests. |
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