Extract from the Decision concerning Lehman Brothers (Luxembourg) S.A. pursuant to Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding-up of credit institutions
Date: 2009-06-05
Institutions: European Commission
Subjects: Luxembourg, bank, financial institution, liquidation, public limited company








C_2009125EN.01001801.xml










5.6.2009   


EN


Official Journal of the European Union


C 125/18






DISSOLUTION

By judgment of 1 April 2009, the Second Chamber of the Tribunal d’arrondissement de et à Luxembourg (District Court of Luxembourg) sitting in commercial matters (‘the Court’), pronounced the dissolution and ordered the winding up of the limited liability company Lehman Brothers (Luxembourg) S.A. established at 7 Val Sainte Croix, L-1371 Luxembourg, RCS (Company Register) Luxembourg B No 39564.
The same judgment appointed Odette PAULY, First Vice-President of the Tribunal d’arrondissement de Luxembourg, as official receiver and appointed Jacques DELVAUX, notary, and Laurent FISCH, lawyer, both with an address for service in Luxembourg, as liquidators,
with the task of winding up the limited liability company Lehman Brothers (Luxembourg) S.A., …






 



states that the winding up of the limited liability company Lehman Brothers (Luxembourg) S.A. will take place in accordance with the provisions of the Law of 5 April 1993 on the financial sector, as amended, Articles141, 144, 146 and 149 of the Law of 10 August 1915 on commercial companies, as amended, and Articles 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 463, 464, 465-1, 3 and 5, 485, 487, 508, 528, 537, 538, 539, 540, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 567-1 of the Commerical Code,










 



fixes the time for the termination of payments as 24 March 2008 and lays down the methods for the winding up of the limited liability company Lehman Brothers (Luxembourg) S.A. as follows:


‘Creditors:

From the day of the present judgment, the rates of interest on all claims not guaranteed by a prefential ranking, security or mortgage shall be stopped.
From the same day, compensation shall no longer be payable except in the following cases:






—


existence of related debts,










—


application of the provisions of the Law of 5 August 2005 on financial guarantees,










—


application of the provisions of foreign law, in particular under the rules of private international law laid down in Articles 61-10, 61-12, 61-13, 61-14, 61-15, 61-25 and 61-26 of the Law on the financial sector.




The period within which declarations of claims must be filed shall be fixed on 1 August 2009.

Verification of claims:

The verification of claims shall be carried out by the liquidators, but admission of claims shall be the subject of a report signed by the official receiver and the liquidators.
The lists with the claims periodically declared admissible will be filed at the registry of the Second Chamber of the Tribunal d’arrondissement de Luxembourg during the first ten days in October, February and June, where it may be inspected by the declared creditors and those entered on the balance sheet.
During that period, the same persons may make an objection to the claims entered on the list. The objection is made by declaration at the registry. The registrar shall refer to the list in question in the margin of the contested claim. The reference shall carry the date of the objection and the identity of its author and, as the case may be, of the agent making the objection declaration. The objection must be repeated within three days by registered letter sent to the liquidators, failing which it shall be inadmissible. To be admissible it must contain the exact status of the author of the objection, choice of domicile in the Municipality of Luxembourg, the reasons for his or her position as declared creditor or creditor entered on the balance sheet and the pleas and documents relied on in support of the objection.
The admissibility and substance of the objection shall be checked briefly by the liquidators.
After expiry of the period of ten days to make an objection, the claims declared admissible which are uncontested shall be definitively admitted in the reports signed by the liquidators and the official receiver.
The liquidators of the limited liability company Lehman Brothers (Luxembourg) S.A. shall duly inform the creditors whose declarations of claim have been contested or are the subject of an objection that their claims are contested or that there is an objection, by registered letter to the address stated in the declaration of claim or, alternatively, their last known address.
If those creditors fail to proceed by summons within a period of 40 (forty) days from the date of sending of that registered letter by the post office, the declaration of claim in question must be considered to be definitively rejected.
It is imperative that a creditor who proceeds by writ against the liquidators and, in the case of objections, against the objecting creditor, has an address for service in the Municipality of Luxembourg, either in the writ or in a subsequent document. If that address for service is not maintained for the duration of the proceedings or there is no notification to the liquidators of the limited liability company Lehman Brothers (Luxembourg) S.A. of a change of address for service all further information for him and service against him may be validly given or effected at the registry of the Tribunal d’arrondissement de Luxembourg sitting in commercial matters, as laid down in the second paragraph of Article 499 of the Commercial Code.
Disputes which cannot be decided immediately shall be dealt with separately. Those which are not within the jurisdiction of the Tribunal d'arrondissement de Luxembourg shall be sent back to the court having jurisdiction.
No application may be made to set aside judgments ruling on disputes and objections.
Creditors whose claims have been admitted shall be informed individually thereof by the liquidators of the limited liability company Lehman Brothers (Luxembourg) S.A. by ordinary post.

Conversion of claims drawn up in a currency other than EUR:

The claims drawn up in a currency other than EUR shall be converted into that currency at the exchange rate of the day of the judgment of the winding up as published by the Central European Bank, and the payment of all admitted claims shall be in that currency.

Distribution of dividends:

The liquidators shall send the court a request for the purpose of authorisation to proceed to the distribution and of drawing up a statement of account. The judgment fixing the date of the statement will be published in extracts, at least one month before the date fixed by the court in the following newspapers: Luxemburger Wort, tageblatt and the Financial Times.
The publication will show information to creditors who fail to present their debt before the date fixed for the statement of account and cannot be taken into consideration at the time of the payment of the upcoming dividend, in accordance with the provisions of Article 508 of the Commercial Code.
At the date of the statement of account, the liquidators will fix the assets and the liabilities and determine the dividend to be paid.
The distribution of the dividend declared shall take place in the four months after the statement of account.
At the request of the liquidators, a judgment will be delivered approving the status of the distributions to the creditors, which will have the result that distributions to creditors from the liquidators will not be available.
There shall be no need to pay interest to creditors whose claim has not been admitted definitively, and which have received payment of one or several dividends after other creditors, provided that and only in so far as that interval is caused by the normal course of winding up transactions.
Further, there shall be no need to pay interest to creditors whose claims have been admitted definitively but the payment of which takes place after a certain interval between the date of the judgment authorising the payment of the interim dividends and actual payment, whether that delay is owing to the creditors not having provided the liquidators with the necessary information for actual payment, a legal restriction or difficulty in identifying creditors.
During the winding up proceedings the undistributed dividends must be retained by the liquidators and produce interest for the body of creditors.

Liquidators:

From the date of this judgment, all acts concerning movable and immovable property and enforcement concerning movables or immovables may be pursued or commenced only against the liquidators, just as the exercise of any act concerning the company shall henceforth be reserved to the liquidators.
The liquidators will take an oath before the official receiver to carry out their duties in a proper and loyal manner.
The Tribunal de commerce (Commercial Court) may replace at any time one or both of the liquidators, revoke their capacity or increase their number.
The liquidators will draw up an inventory of instruments, securities, claims and assets of all kinds forming part of the assets of the limited liability company Lehman Brothers (Luxembourg) S.A., without making a distinction as to their place of filing or situation in the Grand Duchy of Luxembourg or abroad.
The liquidators will realise and sell those instruments, securities, credits and assets and distribute the income in one sum or by a series of instalments in accordance with the respective rights of the creditors. The distributions relating thereto must be approved by the court.
With a view to achieving that objective, the liquidators may receive all payments, give a release with or without a receipt, endorse all commercial instruments and sell the movable or immovable property of the company.
With the authorisation of the court, given upon a report of the official receiver, the liquidators may reach agreements or settle all disputes, even those relating to property rights, when those transactions or settlements relate to an indefinite value or a value in excess of EUR 100 000.
The liquidators may commence and continue all proceedings and actions before any court in the Grand Duchy of Luxembourg and abroad which they deem necessary for the protection of the interests of the creditors and to realise or sell or take possession of all assets, instruments, securities or claims which are part of the assets of Lehman Brothers (Luxembourg) S.A.
The liquidators will also have power to defend in all cases, proceedings and actions brought either against them in their capacity of liquidators or against the limited liability company Lehman Brothers (Luxembourg) S.A., pursue, both as applicant and defendant, and intervene in all cases, proceedings and actions pending now and in the future before any court, and to bring appeals against all judgments, orders or other decisions delivered or made or to be delivered or made in all disputes, proceedings and cases, in both Luxembourg and abroad, and in so far as the liquidators consider that the defence, pursuance, intervention and appeal is necessary or useful to protect the assets of the limited liability company Lehman Brothers (Luxembourg) S.A.
The liquidators may, in so far as they deem necessary, have recourse to the services of attorneys, agents or staff for the purpose of preserving or keeping the books, records and archives of the limited liability company Lehman Brothers (Luxembourg) S.A. and for the purpose of preserving and selling those assets and take all other measures they deem necessary in the interest of the winding up.
All expenditure incurred for that purpose and to that end by the liquidators will be chargeable to the limited liability company Lehman Brothers (Luxembourg) S.A.
The liquidators will implement their decisions and act vis-à-vis third parties and institutions and courts, without any special delegated powers for specific acts and under their joint signature.
The costs and fees of the liquidators will be chargeable to the limited liability company Lehman Brothers (Luxembourg) S.A.
After completing the winding-up work, the liquidators will report to the court concerning the result of the winding up and the use of the institution’s assets, submitting the accounts to the court and providing it with supporting documents.
After the report of the receivers, a ruling will be given on the management of the liquidators and on the closure of the winding up.
The judgment closing the winding up will be published in accordance with the detailed rules to be determined in the closure decision, stating both the place where the books and documents of the winding up are to be filed and preserved for at least five years and the measures taken for the purpose of deposit of the monies and assets passing to the creditors and shareholders which could not be handed over to them’,











 



orders the provisional enforcement of this judgment with immediate effect and before registration, notwithstanding any appeal,










 



makes the costs of the present decision chargeable to the limited liability company Lehman Brothers (Luxembourg) S.A.,










 



states that the present judgment will be published in extracts in the special Mémorial C collection of companies and associations and in the following newspapers: Luxemburger Wort, tageblatt and the Financial Times, within eight days of delivery in accordance with Article 61(12) of the Law of 5 April 1993 on the financial sector, as amended,





Official extract.


The liquidators

Jacques DELVAUX and Laurent FISCH