In re Lehman Bros. Holdings Inc.
In re Lehman Bros. Holdings Inc.
Opinion of the Court
Before the Court is the motion (the "Motion"),
Objections to the Motion were filed by (i) Deutsche Bank AG, London Branch ("DB" and, such objection, the "DB Objection")
On January 31, 2018, Bruce Alexander Mackay and Matthew Robert Haw of RSM Restructuring Advisory LLP, in their capacity as the joint liquidators of the General Partner (as defined below) (the "Liquidators" and, together with DB, Barclays, Citi, Merrill Lynch, and CarVal, the "Objecting Parties") filed (i) a limited objection to the Motion (the "Liquidators' Objection"),
On May 24, 2018, the Plan Administrator filed a Reply in Support of the Motion (the "Reply").
BACKGROUND
A. The Partnerships and ECAPS
Between 2005 and 2007, LBHI and certain other parties, including certain of its affiliates, established five partnerships: Lehman Brothers UK Capital Funding LP ("LB UK I"), Lehman Brothers UK Capital Funding II LP ("LB UK II"), Lehman Brothers UK Capital Funding III LP ("LB UK III"), Lehman Brothers UK Capital Funding IV LP ("LB UK IV"), and Lehman Brothers UK Capital Funding V LP ("LB UK V" and, each of the foregoing, a "Partnership"). The Partnerships were created to increase regulatory capital for LBHI and Lehman Brothers Holdings plc ("LBH PLC"), an LBHI non-controlled affiliate, through "back-to-back subordinated arrangements."
LBHI indirectly controlled each of the Partnerships (i) as the sole member of the Partnerships' general partner, LB GP No. 1 Ltd. (the "General Partner"), and (ii) through its indirect ownership of LB Investment Holdings Ltd., the "Preferential Limited Partner" of each Partnership. The General Partner is a company incorporated in England and Wales and the agreements governing each of the respective Partnerships (the "Partnership Agreements") are governed by the laws of the United Kingdom.
B. Substitution of Preferred Stock for ECAPS
The terms of the ECAPS (the "ECAPS Terms"),
"Substituted Preferred Stock" is defined under the ECAPS Terms as "fully-paid non-cumulative preferred stock issued directly by LBHI bearing a right to dividends calculated in the same manner as the [ECAPS], having no voting rights (except as required by law) and being subject to optional redemption in the same manner *157as the [ECAPS]."
Pursuant to its corporate charter in effect prior to the Petition Date (as defined below) (the "Pre-Effective Date Charter"), LBHI was authorized to issue 24,999,000 shares of preferred stock, of which over 17,000,000 shares remained available to be issued as of the Effective Date (as defined below).
C. The Chapter 11 Cases and the Plan
On September 15, 2008 (the "Petition Date") and periodically thereafter, LBHI and certain of its subsidiaries (the "Debtors") commenced with this Court voluntary cases under chapter 11 of the Bankruptcy Code (collectively, the "Chapter 11 Cases"). On December 6, 2011, the Court entered an order confirming the Plan (the "Confirmation Order")
Pursuant to the ECAPS Terms, a Trigger Event occurred on the Petition Date, the date on which LBHI was placed into bankruptcy. Notwithstanding the occurrence of a Trigger Event, the General Partner did not take the requisite steps to effect a Preferred Securities Substitution prior to the Effective Date.
D. Reinstatement of the General Partner
On June 22, 2010, the General Partner was dissolved and stricken from the Register of Companies in the United Kingdom on the basis that the Registrar of Companies had reasonable cause to believe that the General Partner was no longer conducting business.
DB, in its capacity as an ECAPS holder, subsequently determined that the Partnerships might have assets that it believed would need to be protected and ultimately distributed to ECAPS holders; as such, it sought to restore the General Partner to the Register of Companies.
In October 2017, the Liquidators received money market fund proceeds from the Plan Administrator in the amounts of approximately €12.8 million, €10.8 million, *158and $26.7 million on behalf of LB UK III, LB UK IV, and LB UK V, respectively (the "Investment Proceeds"); however, in distributing the Investment Proceeds to the Liquidators, LBHI reserved its rights to obtain the Liquidators' agreement not to distribute the Investment Proceeds until all competing claims to such proceeds have been resolved.
E. The Proposed Substitution
By the Motion, the Plan Administrator requests authority to issue Substituted Preferred Stock under LBHI's Pre-Effective Date Charter as if such stock had been issued on the Petition Date. If the Plan Administrator is authorized to issue Substituted Preferred Stock, LBHI states that it will then seek authority to instruct the General Partner to deliver such Substituted Preferred Stock to ECAPS holders to effectuate a Preferred Securities Substitution, after which (i) ECAPS holders would be entitled to a portion of the distributions for holders of LBHI Class 12 Equity Interests under the Plan; and (ii) the net value of the Partnerships, including the Investment Proceeds and the Subordinated Notes, would inure to the creditors of LBHI through LBHI's ownership of the General Partner and indirect ownership of the Preferential Limited Partner.
Notwithstanding the complex backdrop against which the Motion was brought, the question before this Court is a simple one: whether or not the Plan Administrator may cause LBHI to issue Substituted Preferred Stock under its Pre-Effective Date Charter as if such stock had been issued on the Petition Date. For the reasons that follow, the Court concludes that neither the Bankruptcy Code nor the Plan authorizes the Plan Administrator to issue Substituted Preferred Stock under LBHI's Pre-Effective Date Charter.
DISCUSSION
A. Applicable Law
The Plan Administrator moves this Court pursuant to the Court's authority under sections 105(a) and 1142(b) of the Bankruptcy Code to issue orders necessary to implement the provisions of the Bankruptcy Code and the Plan, respectively.
Section 105(a) of the Bankruptcy Code provides that "[t]he court may issue any order, process or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]."
Section 1142(b) of the Bankruptcy Code provides that
[t]he court may direct the debtor and any other necessary party to execute or *159deliver or to join in the execution or delivery of any instrument required to effect a transfer of property dealt with by a confirmed plan, and to perform any other act ... that is necessary for the consummation of the plan.
B. Relevant Provisions of the Plan
1. Authority of the Plan Administrator
The Plan confers upon LBHI, as the Plan Administrator for each of the Debtors,
the Plan Administrator shall have the authority and right on behalf of each of the Debtors, without the need for Bankruptcy Court approval (unless otherwise indicated), to carry out and implement all provisions of the Plan, including, without limitation, to ...
(iii) exercise its reasonable business judgment to direct and control the wind down, liquidation, sale and/or abandoning of the assets of the Debtors and/or Debtor-Controlled Entities under the Plan and in accordance with applicable law as necessary to maximize Distributions to holders of Allowed Claims; ... and
(xiv) perform other duties and functions that are consistent with the implementation of the Plan.
Plan § 6.1(b)(iii) and (xiv).
2. Treatment of LBHI Common and Preferred Stock
The Plan provides that, on the Effective Date, all outstanding shares of LBHI common and preferred stock were cancelled and exchanged for one new share of LBHI common stock which was issued to the Plan Trust (as defined in the Plan); the Plan Trust holds such share of LBHI stock for the benefit of all holders of former LBHI stock. See Plan § 4.17(b) ("[A]ll LBHI Stock shall be cancelled [and one new share of LBHI common stock] shall be issued to the Plan Trust which will hold such share for the benefit of the holders of such former LBHI Stock consistent with their former relative priority and economic entitlements ...."); Confirmation Order ¶ 81 (same). Pursuant to section 7.4(a) of the Plan, "[a]ny distribution from assets of LBHI that is made to the Plan Trust as holder of such share shall be for the benefit of the holders of Equity Interests in accordance with Section 4.17(b)." Plan § 7.4(a).
3. The Pre-Effective Date Charter and the Amended Charter
Pursuant to section 7.7 of the Plan, "[a]s of the Effective Date, the certificate of incorporation and by-laws of each Debtor shall be amended to the extent necessary to carry out the provisions of the Plan." Plan § 7.7. In connection with the Effective Date of the Plan, (i) the Pre-Effective Date Charter was amended and restated by that certain Amended and Restated Certificate of Incorporation dated March *1602, 2012 (the "Amended Charter") and (ii) LBHI adopted the Amended and Restated By-Laws (the "Amended By-Laws").
Pursuant to the terms of the Amended Charter and the Amended By-Laws, LBHI is prohibited from issuing any non-voting capital stock except the one share of common stock to be held by the Plan Trust. Specifically, the fourth provision of the Amended Charter provides that "[LBHI] shall not be authorized to issue any non-voting capital stock of any class, series or other designation to the extent prohibited by section 1123(a)(6) of the Bankruptcy Code...."
C. The Parties' Positions
The Plan Administrator asserts that it is authorized to issue Substituted Preferred Stock under the Pre-Effective Date Charter "in furtherance of LBHI carrying out the most important operative provision of the Plan: Section 6.1(b)."
The Plan Administrator does not cite to any precedential decision in which a debtor has been granted nunc pro tunc relief to issue stock after the effective date of its confirmed plan as though such stock had been issued on the petition date. Instead, the Plan Administrator emphasizes that these Chapter 11 Cases are "unique" and complicated because the administration of the LBHI estate, which has continued long after the Effective Date of the Plan, depends on the Plan Administrator's collection on claims related to a myriad of intricate *161cross-border transactions with its non-controlled affiliates; as such, the Plan Administrator urges this Court to find that the relief sought by the Motion is reasonable given such unusual circumstances.
The Objecting Parties vehemently disagree with the Plan Administrator, arguing most pertinently that the relief sought by the Plan Administrator directly contradicts the intent of the Plan and the Confirmation Order which, among other things, (i) cancelled the type of securities that the Plan Administrator now seeks to issue pursuant to the Motion; (ii) fixed the sole constituent of LBHI Class 12 Equity Interests as the Plan Trust (and such class did not include the ECAPS holders); (iii) nullified the Pre-Effective Date Charter (pursuant to which LBHI now seeks authority to issue new Substituted Preferred Stock); and (iv) effectuated an amended charter and amended by-laws which expressly prohibit LBHI from issuing new non-voting capital stock.
The Objecting Parties also argue that issuance of the Substituted Preferred Stock - which, pursuant to the ECAPS Terms, must be non-voting shares - would violate section 1123(a)(6) of the Bankruptcy Code, which mandates that a plan shall "provide for the inclusion in the charter of the debtor ... a provision prohibiting the issuance of nonvoting equity securities ...."
D. Neither the Bankruptcy Code Nor the Plan Permits the Plan Administrator to Issue Stock Under the Pre-Effective Date Charter
Section 1142(b) of the Bankruptcy Code provides that this Court may direct *162the Plan Administrator "to perform any ... act ... that is necessary for the consummation of the plan."
Section 6.1(b) sets out the authority of the Plan Administrator to act on behalf of the Debtors and "to carry out and implement all provisions of the Plan , including, without limitation, to ... exercise its reasonable business judgment to direct and control the wind down ... of the Debtors ... as necessary to maximize Distributions to holders of Allowed Claim [and] perform other duties and functions that are consistent with the implementation of the Plan ." Plan § 6.1(b)(iii) and (xiv) (emphasis added). The plain language of section 6.1(b) reflects that the Plan Administrator's authority is tethered to and must be consistent with other provisions of the Plan. Section 6.1(b)(iii) does not, as the Plan Administrator suggests, confer authority on the Plan Administrator to fulfill its duty to maximize distributions to holders of allowed claims under the Plan by any means possible; instead, the Plan Administrator is required to operate within the confines of the Plan. That the Plan does not expressly prohibit the Plan Administrator from issuing stock pursuant to LBHI's Pre-Effective Date Charter is unsurprising and of no consequence; it would indeed be impossible to include in a plan an exhaustive list of all "prohibited" actions.
While issuing preferred stock under the Pre-Effective Date Charter is indeed not explicitly prohibited by the Plan, the Court finds that such an action would contravene core provisions of the Plan both as written and as implemented. First, the Pre-Effective Date Charter was amended and restated in its entirety by the Amended Charter. Even if the Pre-Effective Date Charter was only amended to the extent necessary to carry out the provisions of the Plan, as the Plan Administrator contends,
The Plan Administrator also asserts that Court has authority to grant the Motion pursuant to section 105(a) of the Bankruptcy Code. The Court disagrees. Section 105(a) grants a court broad power to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]."
By their objections, the Objecting Parties have also raised the issues of (i) whether the Partnership Agreements were executory contracts that were rejected; (ii) whether any issuance of Substituted Preferred Stock would comport with U.S. securities laws and Delaware corporate law; and (iii) whether the Motion seeks a modification of the Plan and the Confirmation Order. Because the Court has determined that the Plan Administrator is not authorized to issue Substituted Preferred Stock, the Court declines to address these issues.
For all of the foregoing reasons, the Motion is denied.
IT IS SO ORDERED.
ECF No. 57036.
ECF No. 57037.
ECF No. 57490.
ECF No. 57493.
ECF No. 57595.
ECF No. 57596.
ECF No. 57600.
ECF No. 57601.
ECF No. 57603.
ECF No. 57605.
ECF No. 58100.
At the Hearing, counsel for the Liquidators stated that he was appearing primarily in the event and to the extent that LBHI challenged the standing of DB and the other Objecting Parties to object to the Motion. See June 7, 2018 Hr'g Tr. 42:14-19. Because LBHI did not challenge the standing of DB or Barclays to make arguments at the Hearing, the Liquidators provided limited argument. See June 7, 2018 Hr'g Tr. 7:6-19.
Katz Decl. ¶ 7.
See Katz Decl. ¶ 7.
See Katz Decl. ¶ 7.
See Motion ¶ 9, n.3; DB Objection ¶ 15.
See Motion ¶ 11.
See Motion ¶ 8. LBHI has stated that true and correct copies of the Partnership Agreements and other transaction documents are attached as exhibits to the Katz Decl. See Motion ¶ 8, n.2.
See Motion ¶ 10.
An example of the ECAPS Terms can be found on Schedule 2 of the LB UK I Partnership Agreement, which is attached as Ex. A to the Katz. Decl.
See ECAPS Terms § 5.1.
See ECAPS Terms § 1.
See ECAPS Terms § 1.
See Motion ¶ 18 (citing section 4.1 of the Pre-Effective Date Charter).
ECF No. 23023. A copy of the Plan is attached as Exhibit A to the Confirmation Order.
See Motion ¶ 19.
See DB Objection ¶ 18.
See Motion ¶ 12.
See Sutton Decl. ¶ 25; Liquidators' Objection ¶ 15.
See Liquidators' Objection ¶ 15.
See Liquidators' Objection ¶ 15. The appointment of the Liquidators was later ratified by a meeting of the General Partner's creditors on April 12, 2017. See Liquidators' Objection ¶ 15.
See DB Objection ¶ 36.
See Motion ¶ 20.
Accordingly, the Court need not address the question of the Plan Administrator's ability to compel a Preferred Securities Substitution under the ECAPS Terms, which DB maintains would be a matter for the High Court in London to decide. See DB Objection ¶ 2.
See Motion ¶ 23.
See Plan § 6.1(a) ("LBHI shall serve as Plan Administrator for each of the Debtors.").
See Ex. L to the Sutton Decl. (Form 8-K filed by LBHI with Securities and Exchange Commission on March 6, 2012 announcing filing of Amended Charter and adoption of Amended By-Laws); Ex. M to the Sutton Decl. (Amended Charter); Ex. N to the Sutton Decl. (Amended By-Laws).
Section 1123(a)(6) of the Bankruptcy Code provides:
(a) Notwithstanding any otherwise applicable nonbankruptcy law, a plan shall
(6) provide for the inclusion in the charter of the debtor, if the debtor is a corporation, or of any corporation referred to in paragraph (5)(B) or (5)(C) of this subsection, of a provision prohibiting the issuance of nonvoting equity securities, and providing, as to the several classes of securities possessing voting power, an appropriate distribution of such power among such classes, including, in the case of any class of equity securities having a preference over another class of equity securities with respect to dividends, adequate provisions for the election of directors representing such preferred class in the event of default in the payment of such dividends.
11 U.S.C. § 1123 (a)(6).
Reply ¶ 23.
See Motion ¶ 4.
See Motion ¶ 21; see also June 7, 2018 Hr'g Tr. 6:9; 44:21-45:4; 46:13-22.
See Motion ¶ 25; Reply ¶ 39.
See DB Objection, ¶ 3.
See DB Objection ¶ 47; see generally June 7, 2018 Hr'g Tr. 15:1-17:10.
See DB Objection ¶ 51.
See DB Objection ¶ 52 (citing In re Rickel & Assocs., Inc.,
Section 1127(b) of the Bankruptcy Code provides that
The proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such plan and before substantial consummation of such plan , but may not modify such plan so that such plan as modified fails to meet the requirements of sections 1122 and 1123 of this title. Such plan as modified under this subsection becomes the plan only if circumstances warrant such modification and the court, after notice and a hearing, confirms such plan as modified, under section 1129 of this title.
11 U.S.C. § 1127 (b) (emphasis added).
See Reply ¶ 33.
See Reply ¶ 23.
See Reply ¶¶ 21-25.
Motion ¶ 25.
Reference
- Full Case Name
- IN RE LEHMAN BROTHERS HOLDINGS INC., Debtors.
- Cited By
- 1 case
- Status
- Published