Restructuring Options When Insolvency Looms
Your cannabis company is running out of money. New capital - so readily available just a short time ago - has completely dried up and the “toxic debt” deal from that notorious short seller that you turned your nose up at just a few months ago now appears to be your only hope – except the terms have now become even worse. You’ve been slow-paying vendors for ages – they’re all irate; some have turned the debts over to collection agencies; some have taken you to court. You’ve postponed infrastructure development. You’ve frozen hiring. You’ve made a minor reduction or two in work force. You’ve looked in the company sofa for change. Deep down, however, you know that none of these measures is really going to solve the problem. There’s an awful feeling in your stomach. You’re the leader of a soon-to-be insolvent company. What’s your next move?
This is my first blog post for Restructur Advisors, a company I co-founded with 3 partners at a time when cannabis companies all over North America are in serious distress and need the help and counsel of an experienced team during these tough times. This first post is addressed mainly to CEOs, CFOs, in-house counsel and directors in the Canadian cannabis sector, but lenders and others may also find it useful when a company they have a stake in runs into financial difficulty. I thought it would be helpful to put a friendlier face on the insolvency and restructuring process in Canada because I think there are many companies out there right now that could benefit from the process, yet the perceived stigma associated with insolvency and restructuring may cause many leaders to avoid or delay utilizing the process to restructure their businesses.
I want to emphasize – in fact, I can’t emphasize enough – that once you determine your company is on the path to insolvency, the sooner you seek cover under insolvency and restructuring laws, the better the outcome will likely be. Avoid waiting until you’re completely out of money. You’ll need funds for lawyers, advisors, court appointed monitors or trustees not to mention to run the business during the restructuring process. If you don’t have the funds to retain these groups, it’ll be hard to get them onboard to help. Taking decisive action before becoming insolvent will set you apart as a leader from the many who dither and fail.
Fortunately, looming insolvency can provide opportunity and certainly does not necessarily mean the end. Laws designed to help companies successfully restructure and re-emerge as a going concern have been around for decades. Canada’s restructuring and insolvency laws include two federal statutes: (1) the Companies’ Creditors Arrangement Act (“CCAA”), and (2) the Bankruptcy & Insolvency Act (“BIA”).
The two statutes are conceptually similar but there are differences that may be relevant to your situation. The BIA provides a prescriptive set of rules to effect restructurings, but larger and more complex restructurings generally use the CCAA because of the flexibility in restructuring that is not available for debtors under the BIA.
What’s important is that both statutes provide temporary relief from your creditors as their rights and remedies are suspended to allow you the time to take corrective measures. You may, for example, prepare and file a proposal to revise the terms of your debts and/or enact a sale and investment solicitation process (SISP) to address your company’s insolvency in an organized and orderly manner. You’ll be granted time to meet with creditors to vote on the proposal and, if all goes well, a court sanction to proceed with your plan. To ensure the protections afforded under these statutes are not abused, you will work with a court appointed officer who monitors the proceedings and reports to the court and your creditors, but you are still operating your company subject to supervision.
You may be aware that in certain circumstances Canadian companies can restructure pursuant to corporate statutes like the Canada Business Corporations Act (“CBCA”) – provisions of which provide for fundamental changes in your corporate structure via a court-approved plan of arrangement that provide a certain degree of relief, for example, the exchange of your corporate bonds for other securities or even the extinguishment of certain securities.
Restructuring under the CCAA or BIA versus the CBCA will depend on your circumstances and goals. A CBCA restructuring is faster and less costly than a CCAA restructuring but it offers less by way of the injunctive measures and/or creditor protection you may need to effectively restructure your operations. As such, the CBCA is much more suited to a financial reorganization, rather than a full-scale restructuring. Under CCAA and BIA proceedings you are provided far broader temporary relief from the actions of external parties. Under both the CCAA and BIA, creditors are stayed from commencing or continuing legal action to recover debt during the restructuring period. CCAA, however, also allows the court to extend the stay of proceedings to include non-creditor third parties like suppliers, customers and licensors who can be prevented from taking steps or initiating legal proceeding against you. You may also be allowed broad discretion to terminate, breach or assign contractual obligations. Litigation and claims against your company or its directors cannot be enforced or continued while under a stay granted by the courts pursuant to CCAA or BIA. While the courts do have the ability under the CBCA to extend a stay of proceedings, the relief provided is typically less broad.
One advantage of the CBCA pathway worth noting is privacy. Restructurings under the CCAA or the BIA are generally associated with a degree of stigma because you must formally and publicly admit that your company is insolvent or facing the distinct possibility of imminent insolvency. On the CBCA path, you’ll be able to be a little more discrete about your financial problems; you just won’t have a lot of protection keeping the wolves at bay.
What are insolvent cannabis companies doing so far?
Ascent Industries was the first cannabis company to utilize the CCAA to restructure; it is currently implementing the Plan of Arrangement approved last December by its creditors. It still owns US-based assets after disposing of its Canadian assets to a private company acquirer last spring.
Meanwhile, there are currently four other active cannabis industry related court-supervised restructurings ongoing. I highly recommend you keep tabs on the Invictus, Wayland, AgMedica, and GenCanna files as they’ll be good sources of information on the process involved. Restructur Advisors has prepared a brief summary of the status of each one with links to the active dockets. We are monitoring them and will provide key updates here, on our Twitter stream (@restructuradvs), and in our LinkedIn Cannabis Industry Restructuring & Turnaround Group.
My guess is that the CCAA process is likely to be the most common approach for financially troubled Canadian cannabis companies with debts in excess of $5 million (a requirement under CCAA). The complexity of the cannabis industry and the associated web of stakeholders lends itself more to the broad relief available under the CCAA.
One of my partners at Restructur Advisors is working on a blog posting that describes in more detail the technical steps involved with CCAA. For Canadian cannabis companies with assets in the United States, we will have a different blog post soon describing the unique challenges of accessing similar restructuring provisions in the U.S. Another post coming soon is how restructuring a cannabis company is a very different exercise than restructuring a company in a more traditional sector and why you’ll want to rely on people that understand the industry to avoid pitfalls.
If you decide to take cover under these laws or just want to discretely talk to someone more about the process at no charge, feel free to contact me or my partners at Restructur Advisors.