This decision is especially relevant for investors in distressed M&A and creditors/shareholders of Dutch companies in financial difficulty. Many aspects of the decision are trailblazing - for example the court’s confirmation and clarification of the statutory obligation for creditors/shareholders affected by a restructuring plan to voice any objections they may have in a timely manner - and will prove useful in future Dutch Scheme (WHOA) proceedings.
It should be recalled that the WHOA (Wet Homologatie Onderhands Akkoord) entered into force on 1 January 2021, introducing what is commonly referred to as the “Dutch Scheme”. The Dutch Scheme is the first effective restructuring mechanism outside of formal bankruptcy proceedings in the Netherlands, based on elements of both the US Chapter 11 and the UK scheme of arrangement. The ADO Den Haag restructuring was the most well-known Dutch Scheme case pending in the Netherlands. The proceedings were first initiated in May 2021 and since then NautaDutilh has been instrumental in obtaining several key decisions, such as the grant - and subsequent extension – of a moratorium, the appointment of seasoned Jeroen Reiziger (Trip Advocaten) who has operated as restructuring expert and, finally, judicial approval of the restructuring plan itself. This matter required unparalleled, in-depth knowledge of the WHOA. Our team’s unsurpassed familiarity with the legislative history to the Dutch Scheme (and with the EU Restructuring Directive) was key to successfully refuting the objections to the plan raised by the (out of the money) majority shareholder.
The restructuring plan was negotiated by the restructuring expert over the course of the past 10 months. Throughout this process, we worked closely with the restructuring expert and the various stakeholders. The plan, drafted by NautaDutilh, covers various classes of creditors – unsecured creditors, the tax authorities, a group company as well as the holders of subordinated debt - and the shareholders, and provides for the issuance of new equity to an investor, effectively replacing the existing equity. The court’s decision and reasoning in this case demonstrate the effectiveness of the Dutch Scheme in for example distressed M&A transactions.
Robert van Galen: "Restructuring of a football club is a complicated matter, inter alia because of the license requirements, but I am happy that we got it done and I congratulate the restructuring expert on his excellent job and perseverance."
Our team consisted of Robert van Galen, Paul Olden, Jochem Hummelen and Robert Woudenberg.