Business Flashcards

Question

Privacy for directors and secretary?

Answer 1

o Section 163(1) CA 2006 specifies that only a service address for a director needs to be included on the company’s register of directors (s 277(5) CA 2006 contains the same provision in relation to the address to be included on the company’s register of secretaries). This service address can either be the director’s residential address (if they are not concerned with the need for privacy) or could simply be the company’s registered office and will be the only address available to the public generally. Residential addresses that are already on the public register will not be removed automatically. o Individual directors (but not secretaries) will still have to provide their residential address under s 165 CA 2006, but this information will be kept on a separate, secure register. This register is not open to public inspection.

Answer 2

When a new director is appointed, the company must notify Companies House within 14 days of the appointment (s 167(1)(a) CA 2006), and this will be done by filing form AP01 (for the appointment of an individual director), or form AP02 (for the appointment of a corporate director). The company must also enter the director on its register of directors and register of directors’ residential addresses.

Answer 3

information relating to:  the directors’ salaries, bonus payments and pension entitlements; and  compensation paid to directors and past directors for loss of office. o Section 412 CA 2006 also requires details to be disclosed of any payments made to, or receivable by, a person connected to such a director or a body corporate controlled by a director o Section 413 CA 2006 relates to the disclosure of information on advances and credits given by a company to its directors and guarantees entered into by a company on behalf of its directors.

Answer 4

o Under s 168(1) CA 2006, a company (ie the shareholders) may by ordinary resolution remove a director before the expiration of their period of office.

Answer 5

o It is not possible for the Board to remove a director (unless the Articles specifically provide for this).

Answer 6

 Resignation by notice * A director may simply take the decision to resign from the board by tendering a letter of resignation. This procedure is provided for in MA 18(f). It is usual, although not obligatory, in these circumstances for the board to pass a board resolution accepting the letter of resignation.  Automatic termination * Under MA 18 a person ceases to be a director as soon as: o the director becomes disqualified from being a director; o the director becomes the subject of an individual voluntary arrangement (or similar); o the director becomes bankrupt, or o a registered medical practitioner who is treating the director states in writing to the company that the director has become physically or mentally incapable of acting as a director and will remain so for more than three months.  Disqualification - Company Directors Disqualification Act 1986 (‘CDDA’) * The CDDA is the key piece of legislation regarding disqualification of directors. Under this Act, the court may make a disqualification order against a person preventing them, unless they obtain leave of the court, to be a director, liquidator, receiver or in any other way directly or indirectly involved in the promotion, formation or management of a company. The purpose of such an order is to protect the public against the activities of such a director. Grounds for disqualification include fraudulent or wrongful trading or persistent breaches of company law. * The period of disqualification is for a maximum of 15 years. If a director has been disqualified under the CDDA, it is a criminal offence to participate directly or indirectly in corporate management without leave of the court.  Retirement by rotation * The model articles for public companies require retirement and reappointment of directors by the members every three years. In addition, all directors of listed companies are subject to annual re-election.

Answer 7

* When a director leaves office, the company must both update the company’s register of directors and also give notice to Companies House by filing form TM01 (Termination of appointment of director).

Answer 8

directors' duties are owed to the company and not to individual shareholders. * The duties shift to the protection of the creditors in an insolvency.

Answer 9

 Duty to act within powers (s 171 CA 2006);  Duty to promote the success of the company for the benefit of the members as a whole (s 172 CA 2006);  Duty to exercise independent judgment (s 173 CA 2006);  Duty to exercise reasonable care, skill and diligence (s 174 CA 2006);  Duty to avoid conflicts of interest (s 175 CA 2006);  Duty not to accept benefits from third parties (s 176 CA 2006); and  Duty to declare any interest in a proposed transaction (s 177 CA 2006).

Answer 10

o This section effectively sets out 2 separate duties:  Duty to act within the company’s constitution * The company's constitution is defined in s 257 CA 2006 and includes everything set out in the company's articles of association and decisions taken in accordance with the articles (ie shareholder resolutions). A director is in breach of this duty if they act without authority, eg commit the company to borrow more than the articles allow without prior shareholder approval.  Duty to exercise powers for the purposes for which they are conferred * Directors must not use their powers for improper purposes (eg for personal gain).

Answer 11

o Section 172 CA 2006 stipulates that a director must act in a way which they consider, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. o The Government has stated that ‘success’ should normally mean, for commercial companies, a ‘long-term increase in value’. o In exercising this duty, a director is required to have regard to a range of non-exhaustive matters which are set out in s 172(1) CA 2006, including:  the likely long-term consequences of any decision  employees’ interests  the need to foster relationships with suppliers, customers and others  the impact of the company’s operations on the community and the environment  the desirability of the company’s maintaining a reputation for high standards of business conduct  the need to act fairly as between the members of a company o Although many of these matters were not specifically provided for under the common law, many companies would routinely consider such matters, as a necessary part of good business practice following the concept of ‘enlightened shareholder value’. This is a term used to describe the ‘middle way’ between, on the one hand, running the company purely to maximise shareholders’ interests/profits and, on the other hand, a pluralist approach which involves acting in the interests of a wider group of stakeholders.

Answer 12

ensuring board minutes clearly note that consideration has been given to the s 172 CA 2006 duty when taking board decisions

Answer 13

o This duty codifies the principle that directors must exercise their powers independently, and not fetter their discretion other than in accordance with s 173(2) which states the duty is not infringed by a director acting:  in accordance with an agreement entered into by the company that restricts the future exercise of discreation by its directors; or  in a way authorised by its constitution. o They can rely on advice from others but must make their own judgments. Directors must be mindful of the individual nature of this duty when acting. o They cannot blindly follow others’ views without considering the interests of the company.

Answer 14

o The level of care, skill and diligence which a director must exercise is assessed objectively and subjectively. o The required level is the level of skill, care and diligence which would be exercised by a reasonably diligent person with:  the general knowledge, skill and experience that may reasonably be expected of someone in their role; and  the general knowledge, skill and experience of that director. o The minimum standard expected of a director is that objectively expected of a director in that position. This standard may then be subjectively raised if the particular director has any special knowledge, skill and experience.

Answer 15

* Long term contract is a guaranteed term of employment for longer than two years *  Company cannot get rid of the employee unless it falls into the limited circumstances * * Shareholder approval by ordinary resolution is required for any director’s service contract which is, or may be, for a guaranteed period in excess of two years (s 188(2)(a) CA 2006).

Answer 16

where the conflict arises in relation to a transaction with the company

Answer 17

* Section 177 CA 2006 relates to the duty on directors to declare a direct or indirect interest in a proposed transaction. The duty to avoid a conflict of interests does not apply to interests in proposed transactions (s 175(3)).

Answer 18

o This duty requires a director to ‘avoid a situation in which they have, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company.’ o This is quite widely drafted and is said to apply ‘in particular to the exploitation of any property, information or opportunity’. It is no excuse for the director to say that the opportunity is not one which the company could have exploited itself. o The duty is not infringed ‘if the situation cannot reasonably be regarded as likely to give rise to a conflict of interest_’_ or if the conflict arises:  in relation to a transaction with the company (eg a transaction between the director and the company) (s 175(3) CA 2006); or  in relation to a matter which has been authorised by the directors (s 175(4)(b) CA 2006).

Answer 19

o This is the second of the three duties aimed at conflicts of interest. Under this section, a director must not accept a benefit from a third party which is conferred by reason of them being a director, or by reason of them doing (or not doing) anything as a director. o However, note that the duty is not breached if the acceptance of the benefit cannot reasonably be regarded as likely to give rise to a conflict of interest (s 176(4) CA 2006). o Note that, unlike the duty in s 175 CA 2006, the other directors cannot authorise an arrangement under this section. There is no provision allowing them to do so. It would be possible for the shareholders to approve a director’s proposed action in advance or for ratification under s 239.

Answer 20

Any director who is interested in a proposed transaction with the company must declare the nature and extent of their interest to the other directors. This covers indirect interests, as well as direct interests. o In addition to the duty under s 177 CA 2006 to disclose interests in proposed transactions entered into by the company, directors are also required to disclose interests in existing transactions or arrangements entered into by the company (s 182 CA 2006.

Answer 21

* Note that s 177 CA 2006 applies equally to ‘indirect interests’. An indirect interest is not always easy to identify. Where a director has some interest whether through a spouse or another relative or through a company in which they are a member, the director is likely to be deemed to have an indirect interest. The director does not have to be party to the transaction for s 177 CA 2006 to apply. * A director must declare their interest in a proposed transaction before the transaction is entered (s 177(4) CA 2006, subject to anything different expressed in the articles). * The declaration can be at a Board Meeting (s 177(2)(a) CA 2006) or in writing in advance of the Board Meeting (s 177(2)(b)(i) CA 2006). It is also possible for directors to give a one-off general notice of their interest (s 177(2)(b)(ii) CA 2006). Best practice suggests that an interested director will declare that interest at BM1. * If a director discloses an interest to the other directors by way of written notice rather than in a meeting of the directors, then the notice must be sent to all directors either electronically (if agreed) or in paper form (s 184 CA 2006). * Under s 185, a director can give general notice to the effect that they are always to be considered interested in any transaction or arrangement with a specified party. This will be if a director has an interest in a specified body corporate or firm (s 185(2)(a) CA 2006) or is connected to a specified person (s 185(2)(b) CA 2006).

Answer 22

o Sections 177(5) and (6) CA 2006 set out when a director is not required to make a declaration; namely when:  the director is not aware of the interest or transaction or arrangement in question (a director is treated as being aware of the interest or transaction/arrangement if it is a matter of which they ought reasonably to have been aware);  the interest cannot reasonably be regarded as likely to give rise to a conflict of interest or the other directors know about or ought to have known about the conflict of interest; or  if the conflict arises because it concerns their service contract and their service contract has been or will be considered by the board, or a committee of the board, of directors. o In practice, directors are likely to continue to declare their interests even if the other directors know or ought to have known about any conflict. This can easily be documented in the board minutes and avoids the need to rely on an exception that may or may not apply.

Answer 23

o MA 14 specifies that a director who is interested in a transaction or arrangement with the company cannot vote on or count in the quorum for board resolutions in respect of that transaction or arrangement. o This could cause difficulties in small companies. However, MA 14(2) and (3) allow the conflicted director to count in the quorum and vote if:  the company disapplies MA 14(1) by ordinary resolution;  the director’s interest cannot reasonably be regarded as likely to give rise to a conflict of interest; or  the director’s conflict arises from a permitted cause (defined in MA 14(4)). o An alternative, and more permanent, measure would be to remove MA 14 under s 21 CA 2006 and replace it with an article expressly permitting a director interested in a transaction or arrangement with the company to vote and count in a quorum on board resolutions to approve the transaction or arrangement.

Answer 24

o Under s 178 CA 2006, the consequences of a breach of directors’ duties are the same as for breach of the corresponding common law or equitable principles. With the exception of the duty to exercise reasonable care, skill and diligence (s 174 CA 2006), the statutory duties are enforceable in the same way as fiduciary duties owed by directors to their company. The potential remedies for breaches of ss 171– 173 and 175– 177 are: *an account of profits; *equitable compensation for the loss suffered by the company; *rescission of any contract entered into as a direct or indirect result of the breach; *an injunction, to prevent further breaches/ a continuing breach; *restoration of property transferred as a result of the breach of duty. Breach of s 174 is akin to negligence and so the remedy for breach of the duty to exercise reasonable care, skill and diligence is common law damages assessed in the same way as damages for negligence.

Answer 25

o The shareholders can, by ordinary resolution, subject to anything in the company's articles requiring a higher majority or unanimity, under s 239(2) CA 2006, ratify (ie approve after the breach) the following conduct of directors:  negligence;  default;  breach of duty; and  breach of trust. o If a director holds shares in the company, then any votes to ratify their breach which attach to shares held by them or any person connected with them (eg their spouse, children, parents or a company which they control – see ss 252 and 253 CA 2006) will be disregarded under s 239(4) CA 2006. o Unlawful acts can never be ratified (eg declaring a dividend when no distributable profits are available) and shareholders cannot ratify a director’s breach of fiduciary duty in insolvency situations since directors owe their duties to creditors, not shareholders, once the company is insolvent.

Answer 26

* The guaranteed term is the period during which the contract is to continue other than at the instance of the company where the company either cannot terminate the contract or can only terminate in specific circumstances (s 188(3)). The guaranteed term applies to either:  a period during which the contract is to continue other than at the instance of the company (ie a contractual term of more than two years or where the director is in control of how long the contract continues) (s 188(3)(a)(i) CA 2006), and  during this time the company either cannot terminate the contract or can only terminate in specific circumstances (s 188(3)(a)(ii) CA 2006).  OR the period of notice to be given by the company (s 188(3)(b) CA 2006).

Answer 27

* In the absence of approval the term will be void and the contract deemed to terminate on reasonable notice (s 189).  Service contract survives but the service term is void!!!!

Answer 28

* Under s 188(6)(b) approval is not required by the members of any company which is a wholly owned subsidiary of another company * when the company is owned by one shareholder it is exempt from obtaining approval

Answer 29

* If the director is also a director of any holding company, the shareholders of the holding company will also need to give approval (s 188(2)(b)).

Answer 30

 Directors' long-term service contracts (ss 188 – 189 CA 2006)  Substantial property transactions (ss 190 – 196 CA 2006)  Loans, quasi-loans and credit transactions (ss 197 – 214 CA 2006)

Answer 31

 Under s 177(6)(c) CA 2006, a director is not required to disclose their interest in the service contract. However, it is likely to remain the practice that directors will continue to make the declaration of interest under s 177(1) CA 2006 so that it is documented in the board minutes.  In addition, the director will not be permitted to vote or count in the quorum on any board resolution relating to the contract (Model Articles 14(1)).

Answer 32

o A company must keep a copy of all directors' service contracts (or, where the contracts are not in writing, memoranda of their terms) at the company's registered office or a place specified in regulations made under s 1136 CA 2006 for a period of at least one year from the date of termination or expiry of the contract for members to inspect. This obligation applies regardless of the length of any service contract and whether or not it is terminable within 12 months. Under s 229 CA 2006 members have the right to inspect without charge or to request a copy on payment of a fee.

Answer 33

o Where the ordinary resolution is to be passed at a General Meeting, s188(5)(b) CA 2006 sets out that a memorandum setting out the proposed contract must be made available for inspection by members of the company both:  at the company’s registered office for not less than 15 days ending with the date of the meeting; and  at the meeting itself. o A minimum of 15 days’ notice of the GM held to approve the contract will therefore have to be given to shareholders (even if the short notice procedure is followed) unless the written resolution procedure is used. You can see that this will impact on the speed with which the decision to approve the service contract or not can be made. There is no such 15-day requirement for a written resolution. o Where the written resolution procedure is being followed pursuant to s 188(5)(a) CA 2006, the memorandum setting out the proposed contract must be sent or submitted to every eligible member at or before the time at which the proposed resolution is sent or submitted to the member.

Answer 34

* Shareholder approval must be given either before the transaction is entered into, or after, provided that the transaction is made conditional on approval being obtained.

Answer 35

means an asset other than cash where the value is either: over £5,000 and equates to more than 10% of the company’s net asset value; or over £100,000. o If the company is only recently incorporated and no accounts have yet been prepared, then the net asset value is taken to be the amount of the company's called up share capital.

Answer 36

* If the transaction is between a company and a director of the company’s holding company or a person connected to a director of the holding company, the holding company will also need to approve the transaction by OR (s 190(2)). * Approval is not required by the members of any company which is a wholly-owned subsidiary of another company (s 190(4)(b)).

Answer 37

o Section 190 CA 2006 governs an acquisition or disposal by a director/holding company director (or connected person) of a substantial non-cash asset to or from the company. o These types of transaction are permitted but again require shareholder approval by ordinary resolution. o Shareholder approval must be given either before the transaction is entered into, or after, provided that the transaction is made conditional on approval being obtained.

Answer 38

o The definition of ‘persons connected with a director’ is set out in ss 252–254 CA 2006. The definition is complex and where you suspect that a connected person may be involved, you should always check the details of the legislation. However, in summary, the key categories of connected persons are: o Members of the director's family: spouse or civil partner, parents, children or step-children (s 253(2)). Note that brothers, sisters, grandparents, grandchildren, uncles and aunts are NOT connected persons under CA 2006.  Close relatives!!!! o Bodies corporate ie companies in which the director (and others connected with them) holds 20% or more of the shares (s 254). o A business partner of the director or those connected with them (s 252(2)(d)). o Trustees of a trust the beneficiaries of which include the director or those connected with them (s 252(2)(c)).

Answer 39

o Where a SPT is entered into without shareholder approval, under s 195(2) CA 2006 the transaction is voidable at the instance of the company unless:  restitution is no longer possible,  the company has been indemnified for the loss or damage suffered by it, or  rights acquired in good faith by third party would be affected by the avoidance. o The directors involved (and those so connected under s 195(4) CA 2006) are liable to account to the company for any profits made and to indemnify the company for any loss incurred s 195(3) CA 2006. o Section 196 CA 2006 allows for the arrangement to be affirmed by the shareholders of the company and the holding company (where relevant) by ordinary resolution within a reasonable period. If the transaction is affirmed, the arrangement may no longer be avoided under s 195 CA 2006.

Answer 40

o If the SPT is between a company and a person connected with a director, and the director concerned shows that they took all reasonable steps to ensure the company’s compliance with s 190 CA 2006, the director will not be liable under s 195(6) CA 2006. o There is also a defence under s 195(7) CA 2006 for any connected person (if relevant) and any director who authorised the transaction who can show they had no knowledge of the circumstances constituting the contravention.

Answer 41

o Under s 177(1) CA 2006 a director would need to disclose the nature and extent of their interest to the board. o Under the exception in s177(6)(b) CA 2006, it is arguable that an interested director need not formally to declare an interest if the other directors are already aware of it. However, it is likely to remain the practice that directors will continue to make the declaration so that it is documented in the board minutes. o Under MA 14(1), any interested directors will not be permitted to vote on the board resolutions to approve the contract and authorise a signatory. They cannot count in the quorum for board resolutions regarding the contract either.

Answer 42

**Step 1: Identify the type of company entering into the transaction** * Public limited company * Private company associated with a plc * Private company not associated with a plc **Step 2: Identify the type of transaction** * Loan * Quasi loans * Credit transactions * Security or guarantee for above * TO * Director of company * Director of holdco * Person connected to director of company * Person connected to director of holdco **Step 3: Is shareholder approval required?** – situations where share holder approval would be required * Private co not associated + Loans or Security/Guarantee for loan + Director of company or Director of holdco * Plc or Private co associated with plc + Loans or Quasi loans or Credit transactions or Security/Guarantee for above + Director of company or person connected or Director of holdco or person connected **Step 4: Which company needs to obtain shareholder approval?** * The company if the transaction is between the company and one of its directors or person connected to one of its directors. * The company and the holdco if the transaction is between the company and a director of its holdco or person connected to a director of its holdco. **Step 5: Are there any available exceptions?** * Wholly-owned subsidiary * Holding Company * Minor and business transactions * Loans and quasi loans up to £10,000 * Credit transactions up to £15,000

Answer 43

o Company loans to directors, holding company directors and connected persons, although permitted, may also be subject to the requirement of shareholder approval by ordinary resolution.

Answer 44

o The restrictions set out in this part of CA 2006 apply to four different types of transaction:  Loans  Quasi-loans  Credit Transactions  Guarantees or the provision of security for any of the above

Answer 45

where the company lends money

Answer 46

quasi-loan would be where a company agreed to pay off an outstanding account owed by a director to a third party on the understanding that the director would later reimburse the company

Answer 47

A credit transaction includes any transaction entered into between the company and the director where the company provides goods or services on a credit basis which will be paid for at a later date. Only the company and the director will be parties to this arrangement; and * Something the company buys in its normal course of business and it is paid back over time

Answer 48

o No company may make loans to its directors or to directors of its holding company or give guarantees or enter into security in connection with loans to such directors, without the transaction first being approved by the shareholders by ordinary resolution. If the company in question is a private company that is not associated with a public company, these are the only transactions for which shareholder approval is required under the CA 2006 loan provisions.

Answer 49

o These companies also require shareholder approval for:  Loans to a person connected to a director of the company or a director of its holding company (s 200);  Quasi-loans (s 198) to, or credit transactions (s 201) with their directors and directors of a holding company or persons connected with such directors; and  Guarantees or security in respect of any such loans, quasi-loans or credit transactions with their directors and directors of a holding company or persons connected with such directors (s 197, 198, 200, 201).

Answer 50

o A guarantee or security is where the company provides a guarantee or gives security in relation to a loan provided to one of its directors by a third party

Answer 51

 Section 204: Expenditure on company business (up to a maximum of £50,000);  Section 205: Loans for defending proceedings brought against a director;  Section 206: Loans for defending regulatory actions or investigations;  Section 207: Minor and business transactions – loans or quasi-loans of up to £10,000 and credit transactions up to £15,000 do not require shareholder approval;  Section 208: Intra group transactions, and  Section 209: Money lending companies (where the loan is made in the ordinary course of the business of the company).

Answer 52

o If shareholder approval is not obtained and no exceptions apply, the consequences are set out in s 213 CA 2006. These are very similar to the consequences for breach of s 190 CA 2006, set out earlier. In relation to the transaction, the consequences are set out in s 213(2) CA 2006: the arrangement is voidable at the instance of the company unless:  restitution is no longer possible,  the company has been indemnified for the loss or damage suffered by it, or  rights acquired in good faith by a third party would be affected by the avoidance. o The directors involved (and those so connected under s 213(4) CA 2006) are liable to account to the company for any profits made and to indemnify the company for any loss incurred (s 213(3) CA 2006). o Section 214 CA 2006 allows for the arrangement to be affirmed by the shareholders of the company and the holding company (where relevant) by ordinary resolution within a reasonable period. If it is affirmed, the arrangement may no longer be avoided under s 213 CA 2006.

Answer 53

o If a transaction contravenes ss 200, 201 or 203 CA 2006 and is entered into with a person connected with a director, that director will not be liable if they took all reasonable steps to ensure the company complied with those sections (s 213(6) CA 2006). o There is also a defence under s 213(7) CA 2006 for any connected person (if relevant) and any director that authorised the transaction who can show they had no knowledge of the circumstances constituting the contravention.

Answer 54

o As with s 190 CA 2006, if the transaction is between a company and a director of the company’s holding company or a person connected to a director of the holding company, the holding company will also need to approve the transaction by OR. * Wholly-owned subsidiary Exemption o As with both ss 188 and 190 CA 2006 approval is not required by the members of any company which is a wholly-owned subsidiary of another company.

Answer 55

o Loans and quasi loans up to £10,000 o credit transactions up to £15,000

Answer 56

o Again, under s 177(1) a director would need to disclose the nature and extent of their interest to the board if they were interested in any of the transactions caught by ss 197-202 CA 2006. o Pursuant to s 177(6)(b) CA 2006, it is arguable that an interested director need not formally declare an interest if the other directors are already aware of it. However, it is likely to remain the practice that directors will continue to make the declaration so that it is documented in the board minutes. In addition, it will not always be obvious to the rest of the Board if the director has an indirect interest in a transaction, so directors should be advised to act cautiously. o Under MA14(1), any interested directors will not permitted to vote on the board resolutions to approve the transaction and authorise a signatory because it is “a... transaction…with the company in which [they] are interested”. They cannot count in the quorum for board resolutions regarding the contract either.

Answer 57

o Where the ordinary resolution is to be passed at a General Meeting, a memorandum setting out the proposed transaction must be made available for inspection by members of the company both:  at the company’s registered office for not less than 15 days ending with the date of the meeting; and  at the meeting itself. o A minimum of 15 days’ notice of the general meeting held to approve the transaction will therefore have to be given to shareholders (even if the short notice procedure is followed) unless the written resolution procedure is used. You can see that this will impact on the speed with which the decision to approve the transaction or not can be made. o Where the written resolution procedure is being followed, a memorandum setting out the proposed transaction must be sent or submitted to every eligible member at or before the time at which the proposed resolution is sent or submitted to the member.

Answer 58

* The Articles of a company regulate the relationship between the members and each other and between the members and the company. They act as a contract.

Answer 59

* right to a dividend once it has been lawfully declared; * right to share in surplus capital on a winding up; * right to vote at meetings; and * right to receive notice of GMs and AGMs.

Answer 60

in Eley v Positive Government Security Life Assurance Co Limited the company’s articles contained a provision that the plaintiff would be appointed as the company’s solicitor. He was never appointed as such although he did become a member. The court held that the plaintiff could not sue under the equivalent of s 33 CA 2006 as the right to be appointed as the company’s solicitor was not a membership right.

Answer 61

company’s Articles are deemed to be a complete contract and the court will not imply any terms into them whether to create business efficacy or otherwise. In order to protect members, it is important, therefore, that any of their rights which are not membership rights are set out in a separate contract (such as a shareholders’ agreement) and not in the Articles.

Answer 62

The Shareholders’ Agreement acts as a kind of extension to the Articles in terms of governing how the company is run and can contain provisions that the law does not permit the Articles to contain. The specific provisions in the Shareholders’ Agreement will depend upon the reason why the parties are entering into the business venture but are likely to include provisions relating to:  Unanimous voting over certain matters eg removing a director;  Quorum for GMs;  Dividend policy;  Allotment of new shares, and  New and departing shareholders.

Answer 63

* A Shareholders’ Agreement provides a right of action which enables one member to enforce the provisions of the Shareholders’ Agreement directly against another, whereas under the Articles this right of action may not arise. Because of the difficulties shareholders can encounter in enforcing the provisions of the articles under s 33 CA 2006, a Shareholders’ Agreement can be used to ensure the enforceability of provisions that would not be regarded as membership rights. * If a term of a Shareholders’ Agreement is breached it can be enforced in the usual way under general contract law principles. A shareholder will be able to claim for breach of contract, or alternatively could apply to the court for an injunction to prevent a breach of the terms of the agreement. A Shareholders’ Agreement can also prevent the need for s 994 petitions (unfair prejudice), although it obviously cannot stop a disgruntled shareholder from bringing such a petition.

Answer 64

* Certain matters can be reserved in a Shareholders’ Agreement as matters requiring the consent of all shareholders or certain individual shareholders and this protects minority shareholders. For example, a Shareholders’ Agreement may provide that the unanimous consent of all shareholders is required to pass a resolution to remove a director. This does not remove the right of the shareholders to remove a director under s 168 CA 2006, as a company is bound to accept the vote of a shareholder even if this is in breach of the provisions of the Shareholders’ Agreement. * Where a removal resolution is passed without the required unanimity, provided a simple majority voted in favour (in accordance with CA 2006), the resolution would still be valid, and the director would be removed from office. The director would then have a claim against the other shareholders for breach of the Shareholders’ Agreement. The threat of a breach of contract claim effectively means that the minority shareholder is able to influence whether or not the resolution is passed.

Answer 65

require the unanimous approval of all parties to the agreement. This would consequently give a minority party a right of veto to any proposed changes.

Answer 66

* Any shareholder * Receive notice of a GM (s 307) * Appoint a proxy to attend a GM in their place (s 324) * Vote at a GM (provided they hold voting shares) (s 284) * Receive a dividend (if declared) * Receive a copy of the company’s accounts (s 423) * Inspect minutes and company registers (s 116) * Ask the court to prevent a breach of directors’ duties * Commence a derivative claim (s 260 - see later) * Bring a petition for unfair prejudice (s 994 - see later) * Bring a petition for just and equitable winding up (s 122 Insolvency Act 1986 - see later) * 5% or more * Require directors to call a General Meeting (s 303) * Require the circulation of written statements regarding proposed resolutions to be considered at a GM (s 314) * Circulate a written resolution (s 292) * 10% or more * Demand a poll vote (MA 44) * Over 25% * Block a special resolution (s 283) (note that a special resolution is passed by 75% or more of the votes) * Over 50% * Pass or block an ordinary resolution (s 282) (note that an ordinary resolution requires over 50% of the votes to pass, therefore a shareholder with exactly 50% of the shares can block an ordinary resolution but cannot pass the ordinary resolution alone) * 75% * Pass a special resolution (s 283) (note that a special resolution is passed by 75% or more of the votes) * 90% * General meeting can be held at short notice (would also need a majority in number of shareholders)  This is 95% for public companies

Answer 67

* Shareholders proposing a removal resolution must give notice of that proposed removal resolution to the company (ie to the board of directors) at least 28 clear days before the General Meeting (‘GM’) at which the removal resolution will be voted on by shareholders

Answer 68

 Option 1 * The board may place the removal resolution on the agenda of a GM  Option 2 * The board may decide NOT to place the removal resolution on the agenda of a GM

Answer 69

* If the board does decide to place the removal resolution on the agenda of a general meeting, it should give the shareholders notice of that removal resolution at the same time and in the same manner as it gives notice of the general meeting (s 312(2) CA 2006). This means that the board will need to give shareholders at least 14 clear days’ notice of the removal resolution under ss 307(1) and 360(1) and (2) CA 2006. * If that is not practical (eg because notice of the general meeting has already been sent out), notice of the removal resolution may be given either by advertisement in a newspaper or any other mode allowed by the company’s Articles at least 14 clear days before the GM(ss 312(3) and 360(1) and (2) CA 2006).

Answer 70

* Only some of the shareholders (the ‘unhappy shareholders’) will have sent the proposed removal resolution to the board. The company’s other shareholders may have no knowledge of the fact that the unhappy shareholders have proposed a removal resolution. Therefore, if the board decides to put the removal resolution on the agenda of a general meeting, it needs to give notice to all shareholders (including the unhappy shareholders) of the fact that a general meeting will be held and that, at that general meeting, all shareholders will have the opportunity to vote on a removal resolution.

Answer 71

* Alternatively, the board may decide not to place the removal resolution on the agenda of a general meeting. Directors are not bound to place the removal resolution on the agenda for consideration at a forthcoming general meeting (Pedley v Inland Waterways Association Ltd). In practice, this creates a problem for shareholders as directors may choose simply to ignore the proposed removal resolution. * If the removal resolution is not placed on the agenda, it will not be considered at the general meeting. In this case, the shareholders may need to force the directors to call a general meeting in accordance with s 303 CA 2006.

Answer 72

* In this situation, the unhappy shareholders may have the ability to require the directors to call a GM and, if the directors refuse to do this, the unhappy shareholders may be able to call the GM themselves. Under s 303(1) CA 2006, shareholders together holding not less than 5% of the paid up voting share capital of the company can serve a request on the company ie the board. The request will require the board to call a GM (a “s 303 request”). * A s 303 request must state the general nature of the business which the shareholders wish to be dealt with at the GM and may include the text of the resolution they want proposed at the GM (here, to consider a removal resolution pursuant to s 168 CA 2006).  Note that the power of shareholders to require the board to call a GM is a general power: it is not limited to circumstances in which they wish to consider a removal resolution.

Answer 73

* Under s 304(1) CA 2006, when the directors receive a s 303 request, they must call the GM:  a) within 21 days from the date on which they become subject to the s 303 request to call the GM; and  b) to be held on a date not more than 28 days after the date of the notice convening (ie calling) the GM. * If the directors fail to call a GM under s 304(1) CA 2006, all of the shareholders who submitted the s 303 request or any of them representing more than one half of the voting rights of those who submitted that s 303 request, can call a GM themselves pursuant to s 305 CA 2006. * If the shareholders call the GM themselves then that GM must be called on no fewer than 14 clear days’ notice (s 305(4) CA 2006) and held within 3 months of the date that the directors received the s 303 request (s 305(3) CA 2006). These timings are summarised in the diagram below. Note that under s 305(6) CA 2006, if the shareholders are forced to call the GM themselves, they can recover their reasonable expenses for doing so from the company.

Answer 74

* Unhappy shareholders give special notice to the Board AND serve notice under s 303  Board has 21 days to decide whether to call a GM * If the board decides to call a GM, it has to be held within 28 days from date of calling it * If the board decides not to call GM: Shareholders can call GM on normal notice. GM must be held within 3 months of s 303 request

Answer 75

*** For the unhappy shareholders to ensure the resolution to remove a director is heard as soon as possible, they will submit a s 303 request requiring the directors to call a GM at the same time as sending their s 312 CA 2006 special notice to the board. * By sending these two notices to the board at the same time, shareholders will comply with s 312 CA 2006 (which is a standalone requirement that needs to be satisfied) and also ensure that:  * the directors either call a GM with an agenda which includes the resolution to remove the director under s 303 CA 2006; or  * the shareholders can step in and call the GM under s 305 CA 2006 themselves. **

Answer 76

* DAY 1  Unhappy shareholders serve notice under s 303  NB – assuming they have already served special notice * DAY 22 (latest)  Board has 21 days to decide whether to call a GM * DAY 50 (latest)  If the board decides to call a GM, it has to be held within 28 days from date of calling it

Answer 77

* DAY 1  Unhappy shareholders serve notice under s 303  NB – assuming they have already served special notice * DAY 22 (latest)  Board has 21 days to decide whether to call a GM  Board loses control of the process on Day 23. * DAY 38  If the board decides not to call GM: from DAY 23 the unhappy shareholders can call GM on normal notice (14 clear days).  [GM must be held within 3 months of s 303 request]

Answer 78

 If a company receives notice that one or more members intends to propose a removal resolution, the company must immediately send a copy of the notice to the director concerned (s 169(1) CA 2006). Note that even if the Board decides not to put the removal resolution on the agenda of a GM, it is obliged to send the special notice to the director concerned.  The director then has the right to make representations in writing provided those representations are of a reasonable length (s 169(3) CA 2006). These representations will, for example, set out the reasons why the director feels they should not be removed. These representations should, unless they are received too late for the company to do so, be circulated to the members of the company. If the representations are not circulated, they should be read out at the GM (s 169(4) CA 2006).  In any event, the director concerned has a right to be heard ie to speak in their defence at the GM, whether or not they are a shareholder (s 169(2) CA).

Answer 79

. **Bushell v Faith clauses** * Always check the articles to see if there is a Bushell v Faith clause.  A Bushell v Faith clause in the articles of association may give a director, who is also a shareholder, weighted voting rights at a GM at which a s 168 CA 2006 resolution is proposed. This is likely to mean that shareholders are unable to pass an ordinary resolution to remove the director concerned. * Way of securing a director * Can be put in with a special resolution  This type of clause is often found in the articles of association of smaller companies where the directors have played a key role in setting up the company and have an expectation that they will be able to continue to be involved in the running of the business. Any shareholders’ agreement should also be checked for similar provisions.  The articles should also be checked in order to determine whether there are any transfer provisions which may govern the transfer of the outgoing director’s shareholding in the company. If a director is to be removed, the company and the shareholders are unlikely to want them to retain their shareholding, so transfer provisions are usually found in a company’s articles of association and/or in any shareholders’ agreement. These transfer provisions would, for example, require the director to transfer their shares to the other shareholders if they are removed as a director. * 2. **Shareholders’ Agreements** - can sue for breach of contract

Answer 80

* Any such payment by a company to a director of its holding company must also be approved by that company. However, no approval is required under s 217 CA 2006 from the shareholders of a wholly-owned subsidiary (s 217(4) CA 2006). * Directors cannot avoid these provisions by the payment being made to a third party rather than directly to the director themselves - under s 215(3) CA 2006 payments made to a person connected to a director, or made to any person at their direction, or for the benefit of, a director or a connected person, will be treated as a payment to the director and will also require shareholder approval. * A memorandum setting out particulars of the payment must be made available to shareholders for 15 days before the ordinary resolution is passed, ending with the date of the general meeting (s 217(3) CA 2006). * The legislation also includes provisions requiring shareholder approval for:  * any payment for loss of office made by any person to a director in connection with the transfer of the whole or part of the undertaking or property of a company (for example, on a share or business sale of the company) (s 218 CA 2006); and  * any payment for loss of office made by any person to a director in connection with a transfer of shares in the company, or one of its subsidiaries, resulting from a takeover bid (s 219 CA 2006).

Answer 81

Any member has the statutory right to bring a derivative claim under s 260 CA 2006 on behalf of the company against directors (and third parties) who have breached their duties.

Answer 82

A derivative claim may be brought by a shareholder on behalf of the company in respect of a cause of action arising from an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director of the company.

Answer 83

* Derivative claims brought under s 260 CA 2006 must be brought by a member. However, pursuant to s 260(4) CA 2006 it is immaterial whether the cause of action arose before or after the person bringing the claim became a member of the company. * A member may, therefore, bring a claim in respect of events that occurred before they became a member of the company. This underlines the fact that the cause of action is vested in the company, rather than the member. * By contrast, a former member cannot bring a claim even in relation to events which occurred when they were a member.

Answer 84

* STAGE 1 - permission hearing  Court decides if there exists a prima facie case * Is there an arguable case on the face of it?  No prima facie case: * Dismiss claim: either absolute grounds (s 263(2)) or factors in s 263(3) - SH to consider other options…  A prima facie case exists: * Allows case to proceed to STAGE 2 * STAGE 2  Detailed consideration of criteria, including evidence from other members. Case then proceeds to trial. * Want more evidence  The court must have “particular regard” to any evidence it has before it as to the views of the members who have no “personal interest, direct or indirect, in the matter” – s 263(4) CA 2006

Answer 85

* * Any shareholder can bring an unfair prejudice claim under s 994 CA 2006 on the grounds that the running of the company has unfairly prejudiced them.

Answer 86

A claim under s 994 CA 2006 is a personal action brought by the shareholder against the company.

Answer 87

 * the granting of excessive remuneration to directors;  * directors’ dealing with associated persons; and  * non-payment of dividends.  Note that under s 994 CA 2006 the shareholder sues for themselves, whereas unders 260 CA 2006 (derivative actions) the shareholder sues on behalf of the company in respect of the company’s loss.

Answer 88

* (a) that the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least that shareholder), or * (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial. * If the shareholder can show that the company’s affairs are being conducted in a manner unfairly prejudicial to their interests, or that some act or omission of the company has unfairly prejudiced them, in terms of the reasonable bystander (objective) test – (Re Guidezone Limited), the court will decide what remedy is appropriate in the circumstances.

Answer 89

 The meaning of unfairly prejudicial conduct has been developed through case law and you should note the following principles: * * Negligent or inept management of a company – this will not amount to unfairly prejudicial conduct unless that conduct amounts to serious and/or repeated mismanagement which puts at risk the value of the minority shareholder’s interest; * * Disagreements as to company policy - such as a change in direction of the business, will also not afford grounds for a petition under s 994 CA 2006; * * Bad faith – there is no need to show either bad faith or conscious intent for the conduct to be unfair; * * Breaches of the articles of association – see Lord Hoffmann in O’Neill v Philips:“a member of a company will not ordinarily be entitled to complain of unfairness unless there has been some breach of the terms on which he agreed that the affairs of the company should be conducted… [However,] there will be cases in which equitable considerations make it unfair for those conducting the affairs to rely upon their strict legal powers”; * * Claimant’s conduct – although the conduct of the claimant may be relevant in deciding whether the prejudice was unfair, there is no overriding requirement that the claimant come to court with “clean hands; * * Excessive remuneration –the courts will take a wide view of the prejudice that may be suffered by a minority shareholder; o E.g. they give lots of money to directors and leave little to shareholders * * Legitimate expectation – in terms of certain small private companies (which are often referred to as quasi-partnerships – they are effectively partnerships), case law has established that shareholders may have a legitimate expectation that they be involved in the management of the company, and the prevention of such involvement may equate to unfairly prejudicial conduct. * It is unfairly prejudicial to not pay dividens

Answer 90

* Section 996(2) CA 2005 sets out a list of particular types of order that may be made. These include orders regulating the future conduct of the company’s affairs and requiring the company to do or refrain from doing certain acts. * The most made order is to provide for the purchase of the petitioner’s shares by the wrongdoer(s) (only rarely does this result in an order entitling the minority shareholder(s) to purchase the shares of the majority shareholder(s)). * The value at which such shares are to be purchased is a fundamental issue and usually a matter which is argued.

Answer 91

* In practice, where one side is willing to buy out the shares held by the other and the dispute centres around the valuation of those shares, the court will encourage the parties to settle out of court by means of a binding third-party valuation of the shares. If the petitioner objects to such an out of court settlement, the court will usually require them to give reasons for their objection. * Section 994 petitions are likely to be expensive, time-consuming and complicated to bring. Since the court has discretion to make such order as it thinks fit, such petitions also bring with them a great deal of uncertainty for the petitioner. * Generally, a negotiated settlement will, therefore, be the preferred option.

Answer 92

* The final, and most drastic, remedy available to any shareholder is the right to bring a petition to the court for the company to be wound up (liquidated) on the grounds that it is just and equitable to do so. It is commonly made at the same time as an unfair prejudice claim.

Answer 93

- ordinary shares; - preference shares; - participating preference shares; - deferred shares; - redeemable shares; and - convertible shares.

Answer 94

money raised by the issue of shares

Answer 95

* When their name is entered into the company’s register of members.

Answer 96

* The general term ‘capital’ is used to refer to the funds available to run the business of a company.

Answer 97

* A share is often described as a ‘bundle of rights’. - By investing in the share capital of any company, the investor becomes a part owner of the company and will often have voting rights in shareholder meetings. In the case of a private company, most investors make a long-term investment and will only usually get their investment back on a sale of their stake, a sale of the company itself, on a flotation, or when the company is wound up (provided sufficient funds are available). - The incentives for investing would be the receipt of income (by way of dividend) and a capital gain (by way of the growth in the value of the company, and therefore the individual shares), although neither are guaranteed. * No entitlement on shareholder to insist on a dividend but you if one is paid you have rights in relation to have much how the dividend you recieve - Different classes of shares may carry different rights and entitlements. All rights and entitlements in relation to shares of all classes are set out in the Articles. It is imperative to check these.

Answer 98

- Section 542(1) CA 2006 provides that the shares in a limited company having a share capital must have a fixed nominal value. Section 542(2) CA 2006 provides that any allotment of a share that does not have a fixed nominal value is void. The nominal or par value of a share is the minimum subscription price for that share. - It represents a unit of ownership rather than the actual value of the share. Common nominal values for ordinary shares are 1p, 5p or £1. - Section 580 CA 2006 provides that a share may not be allotted/issued by a company at a discount to its nominal value.

Answer 99

excess over nominal value is known as the ‘premium’. The market value will often be much higher than the nominal value of the share.

Answer 100

- The amount of shares in issue at any time is known as issued share capital\ A company’s ISC is made up of: * shares purchased by the first members of the company, known as the ‘subscriber shares’; and * further shares issued after the company has been incorporated, to new or existing shareholders. New shares can be issued at any time provided that the correct procedures are followed.

Answer 101

shares are only issued and form part of a company’s issued share capital once the shareholder has actually been registered as such in the company’s register of members, and their title has become complete. Section 112(2) CA 2006 confirms that full legal title to shares is only achieved once a person’s name is entered in the company’s register of members.

Answer 102

The amount of nominal capital paid

Answer 103

The amount outstanding can be demanded by the company at any time. Once demanded, the payment has been ‘called’. It is increasingly rare for shareholders not to pay the full nominal value of their shares on issue.

Answer 104

* These are shares that have been bought back by the company itself and are held by the company ‘in treasury’. Treasury shares are issued shares being held by the company in its own name, and the company can subsequently sell those shares out of treasury. * Note that although such a sale of shares is a transfer, not an issue, of shares, s 561 CA 2006 pre-emption rights (see s 560(3) CA 2006) and s 573 CA 2006 disapplication of pre-emption rights will apply. * The company can also choose to cancel treasury shares at any time or transfer them to an employee share scheme.

Answer 105

the company’s Articles.

Answer 106

* Ordinary shares * Redeemable shares * Preference shares * Non-voting shares * Employees' shares * Cumulative shares * Convertible shares * Deferred shares

Answer 107

* Ordinary shares the most common form of share and are the default position: if a company's shares are issued without differentiation, they will be ordinary shares. * Ordinary shares carry a right to vote in general meetings, a right to a dividend if one is declared and a right to a portion of any surplus assets of the company on a winding-up. A company may have more than one class of ordinary share, with differing rights, and perhaps differing nominal values. * Ordinary shares are defined in s 560(1) CA 2006 as "shares other than shares that as respects dividends and capital carry a right to participate only up to a specified amount in a distribution". This negative definition illustrates the point that ordinary shares are the default position and are shares that have an unlimited right to participate in dividends and in surplus capital when a company is wound up. These shareholders receive a fraction of the dividend and capital in accordance with their shareholding. * Although ordinary shareholders receive dividends after preference shareholders, one advantage of ordinary shares is that the entitlement of ordinary shareholders to a dividend is unrestricted.

Answer 108

* A preference share may give the holder a ‘preference’ as to payment of dividend or to return of capital on a winding up of the company, or both. This means the payment will rank as higher priority than any equivalent payment to ordinary shareholders. * If there is a preference as to dividend, this will be paid before the other shareholders receive anything. * Preference shares are normally non-voting although it is important to check the rights set out in the Articles since it is possible to issue preference shares with voting rights.

Answer 109

* It is presumed that a preference share is ‘cumulative’ unless otherwise stated. This means that if a dividend is not declared for a particular year, the right to the preferred amount on the share is carried forward and will be paid, together with other dividends due, when there are available profits. If this accumulation is not desired, then the share must be expressed to be non-cumulative.

Answer 110

Participating’ preference shareholders may participate, together with the holders of ordinary shares, (1) in surplus profits available for distribution after they have received their own fixed preferred dividend; and/or (2) in surplus assets of the company on a winding up. As with preference shares, participating preference shares are almost always issued with a fixed dividend and can be cumulative if stated as such in the articles of association. Participating preference shares with these characteristics are generally called ‘fixed rate participating cumulative preference shares’.

Answer 111

* These carry no voting rights and no ordinary dividend but are sometimes entitled to a share of surplus profits after other dividends have been paid (presuming there is a surplus); more usually ‘deferred’ shares carry no rights at all and are used in specific circumstances where ‘worthless’ shares are required.

Answer 112

* Redeemable shares are shares which are issued with the intention that the company will, or may wish to, at some time in the future, buy them back and cancel them.

Answer 113

* Such shares will usually carry an option to ‘convert’ into a different class of share according to stipulated criteria.

Answer 114

* If an attempt is made to alter the Articles of a company such that existing class rights are varied, the resolution in question will not be effective unless varied in accordance with provisions in the company’s Articles for the variation of those rights or, where Articles don’t contain such provisions, by consent in writing of holders of at least 75% of the issued shares of that class or by means of a special resolution passed at a separate general meeting of holders of that class (s 630 CA 2006). * Shareholders holding 15% of the relevant shares may (provided they did not vote in favour of the variation) apply to court within 21 days of the resolution to have a variation cancelled (s 633(2) CA 2006). Following such application, the variation will not take effect unless and until it is confirmed by the court. The court will not confirm the variation if it feels that the variation unfairly prejudices the shareholders of the class in question.

Answer 115

- By receipt of dividends (income receipts), and - An increase in the capital value of the shares.

Answer 116

* Dividends are only payable by a company if it has sufficient distributable profits (s 830(1) CA 2006).

Answer 117

the company's accumulated realised profits less its accumulated realised losses

Answer 118

* 1.Final dividends – Final dividends are recommended by the directors and declared by the company by an ordinary resolution of the shareholders following the financial year end. * 2.Interim dividends - The articles of a company normally give the directors the power to decide to pay interim dividends if the company has sufficient distributable profits (MA 30 allows this). Interim dividends can be paid without the need for an ordinary resolution of the shareholders. Interim dividends are often paid where the company has realised an investment.

Answer 119

* Step 1 – check whether there is a cap on the amount of shares that can be issued by the company. Cap * Step 2 – check whether company directors need authority to allot the shares. Authority * Step 3 – are the shares equity securities? Disapply - You will be able to work this out by looking at the dividend and capital payout on the shares. If both are capped, the share is not an equity security and therefore pre-emption rights are not relevant. If the shares are equity securities, consider whether the company needs to disapply pre-emption rights. * Step 4 – is the company creating a new class of share? If so, the Articles will need to be amended to incorporate the new class rights. Class * Step 5 – Board will resolve to allot the shares. This step will always be required, regardless of the other steps. Allot | * CADCA

Answer 120

* An allotment of shares is a contract between the company and a new/existing shareholder under which the company agrees to issue new shares in return for the purchaser paying the subscription price. * A transfer is a contract to sell existing shares in the company between an existing shareholder and the purchaser. The company is not a party to the contract on a transfer of shares (with the exception of a sale out of treasury of treasury shares).

Answer 121

* Under s 755 CA 2006 a private company limited by shares is prohibited from offering its shares to the public. As a result, private companies are essentially restricted to offering their shares to targeted investors only and not to the public indiscriminately. * The expression ‘offer to the public’ (as defined in s 756 CA 2006) covers offers to ‘any section of the public’ but excludes offers which are intended only for the person receiving them and offers which are a ‘private concern’ of the persons making and receiving them. This latter exclusion covers offers made to existing shareholders, employees of the company and certain family members of those persons, and offers of shares to be held under an employee’s share scheme. These excluded offers will not fall foul of the s 755 restriction. * This restriction must be considered carefully when a private company is proposing to allot shares.

Answer 122

* Every time that a company offers shares you will need to consider whether it is required to publish a prospectus to would-be investors. A prospectus is an explanatory circular giving investors details about the company and about the investment itself on which to base their investment decision. A prospectus should contain all the information necessary to enable investors to make an informed assessment of the financial status of the company and the rights attaching to the shares (s 87A(2) FSMA), and preparing a prospectus is therefore an expensive and time-consuming process. *** In an offer of shares by a private company, it will usually be the case that a prospectus will not be required. However, you will need to consider the rules each time.**

Answer 123

an automatic process in the event of death or bankruptcy of a shareholder as follows: - If a shareholder dies, their shares will automatically pass to their personal representatives. - If a shareholder is made bankrupt, their shares automatically vest in their trustee in bankruptcy.

Answer 124

* Shares may be transferred from an existing shareholder to a new shareholder by way of sale or gift. * Shareholders are free to transfer their shares subject to any restrictions in the Articles (s 544(1) CA 2006). * It is therefore important to check the Articles for any restrictions on transfer.

Answer 125

- Directors’ power to refuse to register * Article 26(5) MA states: “The directors may refuse to register the transfer of a share, and if they do so, the instrument of transfer must be returned to the transferee with the notice of refusal unless they suspect that the proposed transfer may be fraudulent”. * Under s 771 CA 2006, a company must give reasons if it refuses to register a transfer. - Pre-emption clauses (rights of first refusal) * Here we are looking at pre-emption rights on a transfer of shares (which should not be confused with pre-emption rights on allotment under s 561 CA 2006). Such rights are usually set out in the articles. CA 2006 and MA do not contain any pre-emption rights on transfer, so they must be specially inserted into the Articles of any company wishing to establish them. Pre-emption rights on transfer will often require that a shareholder wishing to sell shares must offer them to the other existing shareholders before being able to offer them to an outsider.

Answer 126

* Instrument of transfer - A transfer of shares is made by way of a stock transfer form, which has to be signed by the transferor and submitted, with the share certificate, to the new shareholder (s770 CA 2006). * Legal and equitable ownership - Beneficial title to the shares passes on the execution of the stock transfer form. Legal title passes on the registration of the member as the owner of those shares in the register of members by the company (s 112 CA 2006). The company will also send the shareholder a new share certificate in this name within two months (s 776 CA 2006). * Stamp duty - The stock transfer form must be stamped before the new owner can be registered as the holder of those shares. Stamp duty is currently payable at 0.5% of the consideration rounded up to the nearest £5. No stamp duty is payable where the consideration is £1000 or less; but where the consideration is more than £1000, a minimum fee of £5 is payable.

Answer 127

* Was the company created 2009/later or before? - Old companies had to have a cap – authorised share capital - Newer companies do not have a cap unless the articles have a cap * If newer then do not need to do anything * Before issuing new shares, you must check the company’s Articles for any cap or limit on the number of shares that may be issued. If this is to be exceeded, the cap must be removed, or the limit increased.

Answer 128

ordinary resolution - * For companies incorporated under CA 1985 Special resolution for * Companies incorporated under CA 200

Answer 129

* Directors need this authority - Automatic authority if you are a private company with one class of shares (unless prohibited in Articles) - Otherwise have to get approval for this authority via ordinary resolution * Directors are responsible for the actual allotment of shares to a shareholder and they must resolve by board resolution to make an allotment. However, they may need to have the prior authority of the shareholders to be able to do this.

Answer 130

- It means the ‘right of first refusal’. New shares should be offered pro rata to existing shareholders before any new investor. - This is because, when a company allots shares to new shareholders, there is an effect on the proportionate ownership of the company held by the existing shareholders. Their ownership is diluted, and therefore their entitlement to dividends and voting power is also diluted. - Due to the potential dilution, s 561 CA 2006 contains pre-emption rights, which give protection to existing shareholders. - Where pre-emption rights apply, the most usual approach is for the company to request the existing shareholders to disapply these pre-emption rights by special resolution.

Answer 131

* To equity securities * The exception to this is a share that has a fixed/capped dividend and fixed right to capital

Answer 132

* Section 569 CA 2006 provides for disapplication of pre-emption rights for private companies with only one class of share by special resolution. Such a disapplication presupposes the directors’ authority to allot the shares derives froms 550 CA 2006 and therefore can apply for so long as the company has in issue, and allots, shares of only one class. * Specific disapplication of pre-emption rights: It is possible, although uncommon, for a company to disapply pre-emption rights in relation to a specific allotment of shares (eg in relation to shares being issued to a particular person or as consideration for a specific purpose) by passing a special resolution under s 571 CA 2006 (rather than s 570 CA 2006). The procedure for specific disapplication is more cumbersome than that for a general disapplication. Directors will need to provide the company’s shareholders with a written statement explaining (i) the reasons for the specific disapplication, and (ii) the amount to be paid to the company pursuant to the allotment along with justification for the amount, under s 571(6) CA 2006. A specific disapplication under s 571 attaches to a particular, pre-existing s 551 authority. * Private companies – exclusion of pre-emption rights in Articles (s 567 CA 2006): Private companies can exclude statutory pre-emption rights permanently, by way of a provision in their Articles. However, companies rarely exclude pre-emption rights on a permanent basis because this would give existing shareholders no protection from dilution (there is no such provision in MA). In practice, only subsidiary companies commonly exclude statutory pre-emption provisions in their Articles. * Private companies with one class of share – disapplication in Articles (s 569 CA 2006): provides for disapplication of pre-emption rights for private companies with only one class of share under the Articles. This is also unusual in practice because it leaves existing shareholdings with no protection from dilution.

Answer 133

* When issuing new shares, a company may also wish to create a new class of shares, such as preference shares. - Will need a special resolution to amend Articles to cater for these new rights

Answer 134

* The directors will resolve by board resolution to allot new shares on behalf of the company. Any requirements for shareholder resolutions must be dealt with in a general meeting before the board meeting is held at which the new shares are allotted. A general meeting will not be needed in advance of the board meeting if: - has no limit in its constitution on the number of shares which can be issued by the company; and - does not require directors’ authorisation because the company is a private company with only one class of shares and there is no restriction in the company’s Articles – s 550 CA 2006) or has already given the directors authority to allot shares; and - is issuing the shares to existing shareholders in proportion to their existing shareholdings and follows the procedure in s 562 CA 2006 or has already disapplied s 561 CA 2006 or is a private company and has taken advantage of s 567 CA 2006; and - has the relevant class rights in its Articles.

Answer 135

* Copies of resolutions to be sent to Companies House within 15 days (s 29, s 30(1), s 26(1)) - Includes ordinary resolution * *CA 1985 companies: need to file any ordinary resolution removing the cap on authorised share capital and any ordinary resolution allowing the company to use s 550 CA 2006 if passed * *Any s 551 ordinary resolution granting the directors authority to allot if passed * *All special resolutions regarding the disapplication of pre-emption rights and/or amending articles if passed * *Amended Articles must also be sent to Companies House if a new class of shares has been created and the Articles amended * Return of allotment (Form SH01) and statement of capital within one month * If the persons with significant control have changed as a result of allotment, the relevant forms (PSC01, PSC02, PSC04, PSC07) * Updating company registers * Update register of members within two months of the allotment. * Update PSC register if necessary * Share certificates * Share certificates must be prepared and sent to new shareholders within two months of the allotment.

Answer 136

public companies (and private companies offering assistance for the purchase of shares in a public holding company) - ss 678 - 679. - Other plcs involved do not matter * If target is public it cannot give financial assistance * If target is private but has a public subsidiary the subsidiary cant give financial assistance – must be the target’s subsidiary company o Otherwise companies can give financial assistance!!!!!!!!!!

Answer 137

* Acquisition or sale of shares - Financial assistance is relevant when there is an acquisition (or proposed acquisition) of shares. - A share sale involves an acquisition by way of a share transfer. When a share sale is contemplated, therefore, the funding arrangements should be examined carefully to see if they fall foul of the financial assistance prohibitions. * Issue of shares - Financial assistance is also relevant on an issue of shares by a company to an investor, since that equally amounts to an acquisition of shares by the investor.

Answer 138

- Financial assistance given by way of gift (s 677(1)(a) CA 2006). - Financial assistance given by way of guarantee, security or indemnity, release or waiver (s 677(1)(b) CA 2006). - Financial assistance given by way of loan or similar agreement (s 677(1)(c) CA 2006). - Any other financial assistance given by a company where the net assets of the company are reduced to a material extent by the giving of the financial assistance or the company has no net assets (s 677(1)(d) CA 2006). * Note that the last of these provides a “catch-all” for any type of transaction not expressly listed in the preceding sub-sections, if it materially reduces a company’s net assets or if the company has no net assets. * Note also that, because of the wording of s 677 CA 2006 (“financial assistance means… financial assistance given by way of…”), it is not enough that a transaction is of the type listed above – it must also actually constitute financial assistance. In other words:  assistance must be being given; and  the assistance must be financial in nature. * It has been held that these terms should be given their ordinary meaning, bearing in mind the commercial realities of the transaction eg actions which merely "smooth the path to the acquisition“ (such as the payment, by a subsidiary of the target, of due diligence fees incurred by the buyer) have been held to amount to financial assistance. * Financial assistance is covered by the rules whether it is direct (eg a loan given to the buyer of shares) or indirect (eg a guarantee given to a bank in relation to a loan made by the bank to a buyer of shares). * Financial assistance is also covered by the rules whether it is given before or at the same time as the acquisition (s 678(1) and s 679(1) CA 2006), or afterthe acquisition (s 678(3) and s 679(3) CA 2006). * Finally, to fall within the statutory provisions, the financial assistance must be being given for the purpose of the acquisition (or, if given after the acquisition, for the purpose of reducing or discharging a liability incurred for the purpose of the acquisition), ie the company giving the assistance must have intended to facilitate the acquisition.

Answer 139

* Under s 680 CA 2006, breach of s 678 or s 679 CA 2006is an offence which can lead to penalties for: - the company (a fine) and - the officers of the company (fine/imprisonment). * In addition to the criminal penalties, under case law the transaction amounting to prohibited financial assistance (eg the loan made the buyer) would be void and the wider transaction (eg the share acquisition itself) may be void as well.

Answer 140

* It is a fundamental and long-established concept of company law that the share capital of a company is seen as a permanent fund available to its creditors. Companies are not permitted to return capital to shareholders other than in limited circumstances. * However, companies may buyback their own shares (or redeem redeemable shares) provided they meet the conditions in CA 2006.

Answer 141

* A buyback of shares may be funded out of distributable profits, the proceeds of a fresh issue of shares or (for private companies only and only to the extent that there are no profits / proceeds of a fresh issue available), out of capital.

Answer 142

* The principle of maintenance of share capital has a number of important consequences, in particular: - Dividends may only be paid out of distributable profits, not capital (s 830(1)), and - Companies generally must not purchase their own shares.

Answer 143

- A company may buyback its own shares (or redeem redeemable shares) provided it follows the procedures set out in CA 2006, and - A company may purchase its own shares where a court order is made for this following a successful shareholder petition for unfair prejudice.

Answer 144

- redemption of redeemable shares; and - purchase of own shares (‘buyback’).

Answer 145

in a private company) a shareholder may want to leave and cannot find a buyer for their shares. Shareholders in private companies are prohibited from offering their shares to the public.

Answer 146

* A buyback of shares takes place when a company purchases its own shares from an existing shareholder. * A company may decide to purchase shares from a shareholder when there is no other buyer available. * Generally, the kind of companies that you are looking at on this module will be making ‘off-market’ purchases of own shares ie the purchase of own shares will take place otherwise than on a ‘recognised investment exchange’. In this case, the company will need a contract setting out the terms of the purchase and this contract will need to be approved by the shareholders by an ordinary resolution. * Where a company uses capital to fund the buyback there is a lot more regulation and procedure.

Answer 147

- Distributable profits; - Proceeds of a fresh issue of shares made for the purpose of financing the buyback; or - Capital.

Answer 148

- The option to use capital is only available to private companies. A public company can never use capital to purchase its own shares; - Any redemption or purchase out of capital must comply with the restrictions in ss 709 - 723 CA 2006 inclusive; and - Companies must first use any money available either in the form of distributable profits or the proceeds of a fresh issue of shares to fund the purchase before using capital.

Answer 149

- The purchase of own shares is not restricted or prohibited in the company’s Articles (s 690(1)(b));The shares being purchased by the company are fully paid up (s 691(1)); and - Following the purchase, the company must continue to have issued shares other than redeemable and treasury shares.

Answer 150

- a contract to purchase own shares is required (s 694(1)); and the terms of the contract need to be approved by ordinary resolution (s 694(2)). - The contract must be available for inspection at the company’s registered office for a period of 15 days before the GM and also at the GM. If a written resolution is used, a copy of the contract must be sent together with the copy of any written resolution (s 696(2)).

Answer 151

* Initial steps * Check there is no limit in Articles on s 690 power to buyback shares * Prepare accounts to check there are sufficient distributable profits * Confirm shares are fully paid * Board Meeting * BR to approve the draft contract * BR to call a GM and approve form of notice / propose a WR * Contract to be made available to shareholders: - If GM: contract must be available for inspection at the company’s registered office for at least 15 days prior to and at GM - If WR: circulate contract with WR * GM / WR * Shareholders pass OR to approve contract. * Holders of shares being bought are not eligible to vote. * Board Meeting * BR to enter into the contract * BR to appoint a director(s) to sign the contract * Post meeting matters * File return, notice of cancellation & statement of capital within 28 days * Keep copy of contract for 10 years * Cancel shares, update register of members (and PSC register if applicable)

Answer 152

The following conditions apply in addition to those set out above in relation to the buyback of shares out of profits or the proceeds of a fresh issue: * The purchase of own shares out of capital is not restricted or prohibited in the company’s Articles; * Check that the accounts were prepared no more than three months before the directors’ statement; * Check if the company has any distributable profits available. If so, those profits (or funds from a fresh issue of shares for the purpose) must be used to fund the buyback before capital can be used (s 710); * A directors’ statement of solvency must be prepared together with an auditors’ report (s 714); * A special resolution to approve payment out of capital must be passed within a week after the directors sign the written statement of solvency (s 716).

Answer 153

* The directors’ statement of solvency must be made no earlier than one week before the GM. The statement confirms that the company is solvent and able to pay its debts as they fall due and that it will remain solvent for a period of 12 months after the buyback (s 714). * The directors need to be careful when making this statement, since if the company does become insolvent and is wound up within one year, they may be required to contribute to the assets of the company and may face criminal sanctions if they had no reasonable grounds for making the statement of solvency. * An auditors’ report must be annexed to the written statement of solvency confirming that the auditors are not aware of anything to indicate that the directors’ opinion is not reasonable (s 714). * A copy of the directors’ statement and auditors’ report must be made available to members (sent with the written resolution or available for inspection at the GM).

Answer 154

* Within seven days of the passing of the special resolution approving the payment out of capital, under s 719 CA 2006 the company must give notice to its creditors by: - Publishing a notice in the Gazette. The notice must state: * that the company has approved a payment out of capital for the purpose of purchasing its own shares; * where the directors' statement and auditors’ report are available for inspection; and * that any creditor of the company may, at any time within the five weeks immediately following the date of the resolution, apply to the court under s 721 CA 2006 for an order preventing the payment. * Publishing a notice in the same form as the Gazette notice in an appropriate national newspaper, or give notice in writing to each of its creditors, and * Filing copies of the directors’ statement and auditors’ report at Companies House. This is so that any interested creditor may inspect these.

Answer 155

* The share purchase can take place no earlier than five weeks, and no later than seven weeks, after the date of the special resolution (s 723 CA 2006). - Only have a two week window to do the transaction - 5 week period so creditors can object * This period cannot be reduced even if the special resolution is passed unanimously – the five week delay is designed to enable shareholders and/or creditors of the company to object to the payment out of capital by lodging an application at court for cancellation of the resolution (s 721 CA 2006). * The seven week longstop period is intended to ensure that the view formed by the directors in their statutory declaration as to the solvency of the company is still likely to be accurate at the time the share purchase is made. * Within 28 days of the date on which the shares that are bought back are delivered to the company, the company must send a return to Companies House under s 707(1) CA 2006 and a notice of cancellation under s 708(1) CA 2006, together with a statement of capital (s 708(2) CA 2006).

Answer 156

* Initial steps - Check there is no limit in Articles on s 690 power to buyback shares or s 709 power to use capital to fund the buyback - No earlier than three months before the directors prepare the statement of solvency, prepare accounts to ascertain available profits - Confirm shares are fully paid * Board Meeting * BR to approve the directors’ statement of solvency (‘DSS’) and the auditors’ report (‘AR’) * BR to approve the draft contract * BR to call a GM and approve form of notice / propose a WR * Contract to be made available to shareholders: - If GM: contract must be available for inspection at company’s registered office for at least 15 days prior to and at GM - If WR: circulate contract with WR * DSS and AR must be signed no earlier than one week before the GM or the passing of the WR * WR * Circulate WR with contract, DSS and AR. * SR to approve payment out of capital and OR to approve contract. * Holders of shares being bought back are not eligible to vote. * ALTERNATIVELY GM * Shareholders pass OR to approve contract. * Shareholders pass SR to approve payment out of capital. * Holders of shares being bought are not eligible to vote. * Contract, DSS and AR must be available at the meeting. * Following GM / WR * Within 7 days: place notices in Gazette and national newspaper and file DSS and AR at Companies House. * Within 15 days: file SR at Companies House. * For five weeks after date of SR: creditors and shareholders have right to object. Copies of DSS and AR must be available for inspection at company’s registered office. * Board Meeting * BR to enter into the contract. * BR to appoint a director(s) to sign the contract. * Payment out of capital must take place between 5-7 weeks after SR passed. * Post meeting matters * File return, notice of cancellation & statement of capital within 28 days. * Keep copy of contract for 10 years. * Cancel shares, update register of members (and PSC register if applicable).

Answer 157

* Redeemable shares effectively give the holder temporary membership in the company. They are issued to be redeemed on the occurrence of certain circumstances (for example by providing for redemption on a fixed date and at a fixed price) or may be redeemed at the option of the issuing company or the shareholder. * All details of the redemption, including date of redemption and the price to be paid at that date, will either be in the Articles or determined by the directors. * As a result, a contract is not required to redeem shares, irrespective of the source of funding used. This is because the terms of the redemption have already been set out in the company’s Articles (or determined by the directors) prior to the shares being allotted. * Where a company uses capital to fund the redemption there is a lot more regulation and procedure. The procedure is very similar to the buyback of shares out of capital.

Answer 158

The directors’ power to run the company is contained in MA 3. Directors exercise their powers by passing board resolutions at board meetings. Alternatively, under MA 7 and MA 8, they can exercise their powers unanimously without a meeting, as long as they indicate to each other that they share a common view on the matter. This could be a resolution in writing, or could be as informal as a text message from each director indicating their agreement to a resolution or course of action.

Answer 159

Under MA 5, the directors may delegate any of their powers as they think fit.

Answer 160

The directors may appoint a director to chair board meetings (MA12(1)), and can do so by passing a board resolution. The chair of the board will run the company’s board meetings. The only additional power the chair has by virtue of their appointment as chair is a casting vote at board meetings (MA13). This means that if a vote is a tie, the chair can use their casting vote to ensure that the resolution is passed by a simple majority. If the chair does not want the resolution to be passed, they will not need to use their casting vote, because a tie means that there is no majority in favour of the resolution and it will not be passed. If the board of directors does have a chair, this person will also chair general meetings, if they are present and willing to do so (MA39(1)). The chair of a publicly traded company has a more important role than the chair of a private company. In a public company, unlike in a private company, the chair of the board acts as a figurehead in dealings with shareholders and anyone outside the company.

Answer 161

The Model Articles provide that the quorum for directors’ meetings is two (MA11). In companies with only one director, the director can still validly take company decisions because MA7(2) allows them to make decisions without calling a board meeting.

Answer 162

Actual authority arises where a director has consent from the other directors to act in a certain way, for example to spend money. It can be express actual authority or implied actual authority to enter into the contract. The authority may be set out in the director’s service contract, or it may have been given following a discussion between the board of directors. This is express actual authority. Implied actual authority arises where the board has not expressly permitted the director to act in a certain way, but the director has acted that way in the past and the board has not tried to stop the director or told them that they are not authorised to act in that way.

Answer 163

Apparent authority is where the director acts without the company’s prior consent, whether express or implied, but still binds the company to the contract. Effectively the company is estopped from denying the director’s authority. Apparent authority is based on a representation, by the company to the third party, by words or conduct, that the director is acting with the company’s authority. It is important to note that it is not the director’s actions which are significant for the purposes of ascertaining whether apparent authority exists; it is the company’s actions or omissions which must be considered. The general theme of the recent case law on apparent authority centres around a director or other employee of the company having apparent authority in the absence of information from the company to correct this impression.

Answer 164

If a director does not have actual or apparent authority, the director is personally liable to the third party and the company is not a party to the contract or liable to the third party.

Answer 165

1. Companies must keep a register of directors, containing required particulars, under s 162(1) and (2). The particulars are set out in ss 163– 164 and include the director’s date of birth and address (for individuals) and the company’s registered office. The register of directors must be available for inspection without charge by shareholders, or by other individuals following payment of a fee, at the company’s registered office (s 1136). It is a criminal offence not to keep the register of directors or to breach the requirement to keep the register open to inspection (s 162). Note that the company can elect not to keep a register of directors at its registered office, and instead keep it on the central register at Companies House (s 167A and B). 2. Companies must keep a register of directors’ residential addresses, for individual directors only (s 165(1)). The register of residential addresses is not open to inspection. However, as with the register of directors, the register of residential addresses can be kept on the central register at Companies House instead (s 167A). 3. Companies House forms CH01 and CH02 are used to notify a change in particulars for natural persons and corporate directors. 4. Forms AP01 (for human directors) and AP02 (for corporate directors) are used to notify Companies House of the appointment of a director, and they must be filed within 14 days of the appointment. (s 167). Forms TM01 (for human directors) and TM02 (for corporate directors) are used to notify Companies House of the resignation or removal from office of a director. These must be filed at Companies House within 14 days of the resignation or removal from office (s 167).

Answer 166

When a director calls a board meeting, they **must give notice** to the other directors. **Notice must be reasonable** (Re Homer District Consolidated Gold Mines, ex parte Smith (1888) 39 Ch D 546). What is reasonable will depend on the facts There is no need for the notice to be in writing, but the notice must include the time, date and place of the meeting (MA 9(3)). If it is not intended that the directors should meet in the same place, the notice must state the method of communication – for example, Skype or an instant messaging service could be acceptable, as long as the directors can each communicate to the others any information or opinions they have on any particular item of the business of the meeting (MA 10(1)(b)).

Answer 167

A quorum of **two directors** must be present at all times during a board meeting. The quorum is the minimum number of directors who must be present in order for the meeting to be valid.

Answer 168

Board resolutions are passed by a simple majority, which means that over half of those present must vote in favour in order for the board resolution to be passed. Voting is carried out by a show of hands and each director has one vote. If the board has appointed one of its directors to act as chair of the board, that director will have a casting vote (ie one extra vote) in the event of a tie. The chair will only need to use this casting vote if they are in favour of the resolution, because if there is a tie, the resolution will not be passed.

Answer 169

There are two types of shareholders’ resolution: ordinary resolutions and special resolutions.

Answer 170

For an ordinary resolution to be passed, over half of the votes cast at a shareholders’ general meeting must be in favour of the resolution. | UNLESS IT IS WRITTEN

Answer 171

For a special resolution to be passed, 75% or more of votes cast at a shareholders’ general meeting must be in favour of the resolution

Answer 172

general meeting or by written resolution

Answer 173

Shareholders’ meetings (other than annual general meetings, or AGMs) are called general meetings. General meetings are called by the board of directors by passing a board resolution (s 302 CA 2006). The board will call a general meeting when they want the shareholders to pass a shareholders’ resolution, or sometimes when the shareholders have requested that the board call a meeting in order that the shareholders can pass one or more resolutions (see 2.5.2). Public companies must hold a general meeting every year but there is no such requirement for private companies (s 336 CA 2006). Companies formed under the CA 2006 will hold general meetings only, and not AGMs, unless they decide to include a provision in their articles which requires or allows for an AGM. In this book, the term general meeting refers to both general meetings and AGMs. In order for a general meeting to be valid, the notice requirements under the CA 2006 must have been complied with (s 301 CA 2006), and the quorum must be met.

Answer 174

The CA 2006 sets out various rules regarding the notice of a general meeting. Firstly, the directors must give notice to every shareholder and every director (s 310), and to the auditor if there is one (s 502). It must be given in hard copy, in electronic form, or by means of a website, or a combination of these means (s 308). The notice must set out, pursuant to s 311(1) and (2): * the time, date and place of the meeting (s 311(1)); * the general nature of the business to be dealt with at the meeting (s 311(2)); * if a special resolution is proposed, the exact wording of the special resolution (s 283(6) (a)); and * each shareholder’s right to appoint a proxy to attend on their behalf (s 325). A proxy is a replacement who will vote in accordance with the absent shareholder’s wishes.

Answer 175

The minimum notice required for a general meeting is 14 clear days.

Answer 176

What ‘clear’ means is that the day that notice is deemed received by the shareholders and the day of the general meeting itself are not counted for the purposes of the notice. Only the days between these two dates are counted in calculating the notice period. This means that there will be 14 days which are ‘clear’ of anything happening between the day notice is deemed received and the day of the meeting itself.

Answer 177

* a resolution to buy back some or all of a shareholder’s shares (see 4.6), because the shareholder in question could be voting in their own interests, not the company’s, when voting; and * an ordinary resolution to ratify a director’s breach of duty under s 239 CA 2006, where the director in question is also a shareholder (see 3.19), because they would almost certainly vote in favour of ratifying their breach of duty as a director.

Answer 178

A poll vote is where the shareholders vote in a general meeting on the basis of one vote for each share that they own, instead of the usual one vote per person.

Answer 179

(a) the chair of the meeting; (b) the directors; (c) two or more persons having the right to vote on the resolution; or (d) a person or persons representing not less than one tenth of the total voting rights of all the shareholders having the right to vote on the resolution. (a) the chair of the meeting; (b) the directors; (c) two or more persons having the right to vote on the resolution; or (d) a person or persons representing not less than one tenth of the total voting rights of all the shareholders having the right to vote on the resolution.

Answer 180

The poll vote can be demanded before a general meeting, or during the meeting, either before voting takes place, or after the shareholders have already voted on a show of hands. If a poll vote is called after the shareholders have already voted on a show of hands, the outcome of the poll vote, if different from the vote on a show of hands, will override the vote on a show of hands.

Answer 181

* a majority in number of the company’s shareholders; * who between them hold 90% or more of the company’s voting shares must consent. This percentage is increased to 95% for public companies. Once the requisite percentage of shareholders has consented, the general meeting can be held straight away, although it may be held at a later date, for example, seven days later instead.

Answer 182

This is an alternative to a general meeting. Instead of issuing a notice of general meeting, the board will instead hand out, post or email a written resolution or place the resolution on a website. This document will set out the text of the ordinary and/ or special resolution(s) which the board is proposing and the shareholder will have to sign and return the written resolution if they would like to vote in favour of it. If the written resolution is sent out by post or email, each shareholder will receive their own copy to sign and return.

Answer 183

The written resolution must be circulated to every eligible member (s 291(2) CA 2006). ‘Eligible member’ means the shareholders who are entitled to vote on the resolution as at the circulation date of the resolution (s 289). Section 291(4) of the CA 2006 sets out certain information which must be included on the written resolution, which is: * how to signify agreement; and * the deadline for returning the written resolution, otherwise known as the lapse date. Unless the articles state otherwise, the lapse date is 28 days from circulation of the written resolution (s 297 CA 2006). Unlike with the notice of general meeting, the method of circulation of the written resolution is irrelevant for the purposes of calculating the lapse date. The lapse date is the 28th day following circulation of the written resolution, whether it is handed to the shareholders, posted or circulated by email. The deadline is generally interpreted as meaning midnight of the 28th day following circulation of the written resolution. If an eligible member signifies their agreement after the lapse date, their agreement will not be counted.

Answer 184

Written resolutions are passed when the required majority of eligible members have signified agreement to the resolution. with written resolutions each shareholder has one vote for each share that they own (ss 282(2) and 283(2) CA 2006). This means that whether a resolution is passed or not can sometimes depend on whether it was proposed as a written resolution or a resolution at a general meeting. This is because when voting at general meetings, each shareholder has one vote per person and only the votes of those who attend the meeting are taken into account. The position with written resolutions is different: for an ordinary resolution, over half of the votes of all of the company’s eligible members are needed to pass the resolution. For special resolutions, 75% or more of all of the votes of all of the company’s eligible members are required in order to pass the resolution.

Answer 185

A shareholder or shareholders who have 5% or more of the voting rights in the company are entitled to require the company to circulate a written resolution. he company’s articles can reduce this percentage below 5% but cannot increase it to more than 5 per cent. The shareholders who have asked the company to circulate a written resolution can require the company to circulate with it a statement of up to a thousand words on the subject matter of the resolution (s 292(3)). The company must then circulate a copy of the resolution and any accompanying statement to all eligible shareholders, within 21 days of the shareholders’ request. The shareholders who requested the circulation of the resolution must pay the company’s expenses in complying with the request (s 294 CA 2006).

Answer 186

The CA 2006 requires companies to notify the Registrar of Companies when certain decisions are made. The penalty for failing to comply with the notification requirements in the CA 2006 is a fine for the company and all of its officers.

Answer 187

he register of members (see 2.7.2) and register of directors (see 3.16). The registers (known as statutory books) can be kept at the company’s registered office or a Single Alternative Inspection Location (SAIL). A SAIL address is notified to Companies House on form AD02, while movement of company records to the SAIL address is notified on form AD03. A form AD04 is used to notify Companies House of company records moving from the SAIL address back to the registered office. Companies must also keep board minutes for every board meeting which takes place (s 248 CA 2006), and minutes of every general meeting (s 355 CA 2006). Companies must keep these, along with a record of the outcome of any written resolutions, at the company’s registered office (or SAIL) for ten years. As an alternative to keeping statutory books at the company’s registered office or SAIL, companies can elect to keep these records on the central register at Companies House instead.

Answer 188

Every company must keep adequate accounting records (s 386(1) CA 2006). What is adequate is set out in s 386. Failure to do so is an offence under s 387 CA 2006. It is the directors’ responsibility to ensure that accounts are produced for each financial year (s 394 CA 2006). The accounts must give a true and fair view of the state of affairs at the company as at the end of the financial year (s 393(1) and s 396(2) CA 2006). Under s 415 CA 2006, the directors of every company (apart from private companies classed as a small company or micro- entity under s 382(3) CA 2006 or s 384 CA 2006) must prepare a directors’ report for each financial year to accompany the accounts. ‘Small company’ means a company with a balance sheet total of not more than £5.1 million, a turnover of not more than £10.2 million, and no more than 50 employees in a particular financial year (s 382 CA 2006). ‘Micro- entity’ means a company with a balance sheet total of not more than £316,000, a turnover of not more than £632,000, and no more than ten employees in a particular financial year (s 384A CA 2006). It is the directors’ responsibility to circulate the accounts, directors’ report and, if required, an auditor’s report to every shareholder and debenture holder, and anyone else who is entitled to receive notice of general meetings. Every company must file its accounts and, unless it is a small company or micro- entity, the directors’ report, for each financial year at Companies House (s 441 CA 2006). The time limit for filing accounts and reports at Companies House is nine months from the end of the accounting reference period for a private company (s 442(2) CA 2006), and six months from the end of the accounting reference period for a public company. Newly incorporated companies have the option of filing the accounts and report three months after the end of the company’s first accounting reference period instead (s 442(3) CA 2006). Every company must file a confirmation statement, on form CS01, within 14 days from the company’s confirmation date, which is the anniversary of its incorporation (s 853A CA 2006). The purpose of the confirmation statement is to make sure that the information held at Companies House, particularly regarding directors, shareholders and persons with significant control, is correct and up- to- date. It is a criminal offence to file the confirmation statement late, or not at all.

Answer 189

Company secretaries will normally have apparent authority to enter into contracts of an administrative nature, but not trading contracts, for example, borrowing money. For an explanation of apparent authority, see 3.12.

Answer 190

The company’s first company secretary will often be the person named on the IN01 form. Any company secretary appointed after incorporation will be appointed by board resolution. Often the power to appoint a company secretary will be expressly stated in the company’s articles, although there is no such power in the Model Articles for private companies because these are more suited to small private companies that do not have a company secretary. However, the directors can use their powers under MA 3 to appoint a company secretary.

Answer 191

The company secretary can resign from their position, or the directors can remove the company secretary from office by board resolution. Sometimes there will be a written contract between the company and company secretary, which will set out the consequences of removal from office, and this may include compensation for breach of contract. It may also give rise to employment law claims.

Answer 192

The company must notify the Registrar of Companies on form AP03 (for a human secretary) or AP04 (for a corporate secretary) within 14 days of the appointment of a company secretary (s 276(1)(a) CA 2006). * Every company that has a company secretary must keep a register of secretaries (s 275(1)) with certain specified particulars (s 275(2)), which are set out in s 277 (human secretaries) and s 278 (corporate secretaries). * Section 279A of the CA 2006 permits private companies to elect not to keep their own register of secretaries, and instead ensure that the information is filed and kept up- to- date on the central register for the company at Companies House. * When a company secretary resigns or is removed from office, the company must notify the Registrar of Companies within 14 days of their resignation or removal, on form TM02 (s 276(1)(a) CA 2006). The register of secretaries will then need to be amended to reflect the fact that the company secretary has left office. * The company must notify the Registrar of Companies within 14 days of any change in particulars of the company secretary kept in the register of secretaries (s 276(1)(b) CA 2006), on form CH03 (for a human secretary) and form CH04 (for a corporate secretary). Again, the register of secretaries will need to be amended to reflect the changes.

Answer 193

The company’s auditor will be an accountant whose main duty is to prepare a report on the company’s annual accounts, to be sent to its shareholders (s 495(1) CA 2006). The auditor’s report must state whether, in the auditor’s opinion, the accounts have been prepared properly and give a true and fair view of the company (s 495(3) CA 2006). Essentially, they must ensure that the shareholders, whose money is invested in the company, are not defrauded or misled by the directors. If the auditor’s report is qualified in any way, this is a warning to the shareholders that there may have been some unethical business dealings, or even fraud. The obligation for private companies to appoint auditors to review their accounts comes from s 485 CA 2006. Small companies are exempt from the statutory audit requirements (s 477 CA 2006). See 2.5.5 for the definition of ‘small company’. Companies which do not trade, known as dormant companies, are also permitted to file abbreviated accounts and are exempt from audit (s 480 CA 2006). If the company must have an auditor, the auditor must be someone who is qualified, that is, a certified or chartered accountant, and independent, that is, not connected with anyone involved in the company (ss 1212– 1215 CA 2006). Usually companies appoint a firm of accountants to be the company’s auditor, meaning that any qualified member of the accountancy firm can undertake the audit.

Answer 194

The directors of a private company usually appoint the company’s first auditor (s 485(3) CA 2006), and after that the shareholders also have the power to appoint the auditor, by ordinary resolution (s 485(4) CA 2006). The terms upon which the auditor is to hold office, and the auditor’s fee, are a matter of negotiation between the auditor and the company. An auditor of a private company is usually deemed to be reappointed automatically each year (s 487). The exceptions to this are set out in s 487 and include a situation where the auditor was appointed by the directors, as the first auditor will have been, or when the company’s articles of association require the auditors to be reappointed every year

Answer 195

Case law has established that auditors do not owe a duty of care either to the shareholders or to potential new shareholders when conducting their annual audit. For liability to be imposed, there would also have to be proximity between the relevant parties. Auditors can be sued for negligence by the company they are auditing. There are two criminal offences relating to auditors under s 507 CA 2006. The first is knowingly or recklessly including misleading, false or deceptive material in the auditor’s report. The second is omitting certain statements from the report which are required to be included by the CA 2006.

Answer 196

The shareholders can remove the auditor from office at any time by ordinary resolution (s 510 CA 2006). The shareholders must give special notice to the company of the proposal to remove the auditor (s 511 CA 2006). Special notice is explained at 3.14.1. The auditor can resign at any time by notice in writing sent to the company’s registered office (s 516 CA 2006). The consequences of removal of the auditor will depend on the terms of the contract between the company and the auditor. Whenever an auditor ceases to hold office, whether as a result of removal or resignation, they must deliver a statement to the company explaining the circumstances connected with ceasing to hold office (s 519 CA 2006). This can be useful in situations where the auditor suspects unethical behaviour by the company and it is a way of making questionable behaviour by the company public.

Answer 197

Once the company is up and running, a person or a company can become a new shareholder in one of two ways. Firstly, the new shareholder could obtain shares from an existing shareholder, by: * buying some of the shares of an existing shareholder; * receiving some of the shares of an existing shareholder as a gift; or * receiving the shares by way of transmission when a shareholder dies or becomes bankrupt, and electing to become a shareholder rather than transferring the shares to a third party. Alternatively, a company may allot new shares. This means creating new shares and selling them to new or existing shareholders

Answer 198

Every company must keep a register of members (s 113 CA 2006). Alternatively, it may elect to keep the information on the central register at Companies House instead (s 128B). All shareholders have the right to have their name on the register of members (s 113 CA2006) and a company must register the transfer (ie enter the new shareholder on the register of members or reflect an existing shareholder’s increased number of shares) as soon as practicable and, as a long stop, within two months of the transfer being lodged with the company (s 771 CA 2006). When a company allots new shares, it must enter the new shareholder on the register of members or reflect an existing shareholder’s increased number of shares as soon as practicable and, as a long stop, within two months of the allotment (s 554 CA 2006). If the company has elected to keep the information at Companies House, it must instead notify the registrar of the share registration as soon as practicable or, as a long stop, within two months. If the company has only one member, there must be a statement to that effect on the register of members (s 123 CA 2006). It is a criminal offence if the register of members is incomplete or incorrect (s 113), including where there is no reference to the fact that it is a one- member company (s 123). Where the company keeps its register of members at its registered office or SAIL, it must be available for inspection to shareholders free of charge and to anyone else for a fee (s 116 CA 2006). Again, failure to allow someone to inspect the register under s 113 is a criminal offence (s 118 CA 2006).

Answer 199

All shareholders have the right to receive a share certificate (s 769(1)(a) and s 776(1) (a) CA2006). This is important because the share certificate is prima facie evidence of the holder’s title to the shares (s 768 CA 06). Companies must issue share certificates within two months of the allotment of shares (s 769 CA 2006) or within two months of a transfer of shares being lodged with the company (s 776 CA 2006).

Answer 200

The purpose of the PSC register is to enable third parties to understand who holds power in the company. Any shareholder who owns more than 25% of the shares or controls more than 25% of the voting rights in the company must appear on the PSC register. This applies not only to individual shareholders but also to shareholders which are ‘relevant legal entities’ such as companies. Companies must keep a PSC register even if there are no shareholders entered on it because there are no shareholders with significant control. People with significant control, like directors, can apply to keep their residential address private, so that it does not appear on the public register at Companies House. They can also apply to have their name private, so all that will appear on the register of persons with significant control is that there is a person with significant control but that they have successfully applied to have their personal information kept private. If their application is successful, the PSC register will state how many shares a person has, but not their identity or address. Under s 790 CA 2006, private companies can keep the information regarding persons with significant control on the central register at Companies House instead. There are a number of Companies House forms which must be completed when the information on the PSC register changes. The most significant ones are: * Form PSC01 must be completed by any individual who is to appear on the PSC register for the first time. * Form PSC02 must be completed by any relevant legal entity who is to appear on the PSC register for the first time. * Any shareholder who already appears on the PSC register but whose details change must complete form PSC04, and any relevant legal entity who already appears on the PSC register but whose details change must complete form PSC05. * Anyone ceasing to be a person with significant control must complete form PSC07. The deadline for filing the forms is 14 days from the date the company made the change in its PSC register (s 790VA CA 2006).

Answer 201

Common in shareholder agreements preventing the shareholder from involvement in a business which competes with the company.

Answer 202

* restrictions on transferring shares; * Bushell v Faith clauses (from Bushell v Faith [1970] AC 1099). They give shareholders weighted voting rights (ie more votes than they would normally be entitled to) when the resolution under consideration is a resolution to remove that shareholder from their office as director; and * a non- compete clause, preventing the shareholder from involvement in a business which competes with the company.

Answer 203

1. Right to send a proxy to a general meeting on their behalf (see 2.3.2). 2. Right to a poll vote (see 2.3.5). 3. Right to receive notice of general meetings (see 2.3.2). 4. Right to requisition a general meeting (see 2.5.2). 5. Right to apply to the court to call a general meeting, if for some reason it is not possible for one to be held otherwise (s 306 CA 2006). An example would be where the other shareholders are refusing to attend a general meeting and so it is not possible to hold a meeting which is quorate. 6. Right for a shareholder or shareholders with 5% or more of the voting rights in the company (or 100 or more shareholders with the right to vote, as long as they have paid up an average of £100 or more on their shares) to require the circulation of a written statement of up to a thousand words with respect to any resolution or business to be dealt with at a general meeting. 7. Right for shareholders holding 5% or more of the company’s shares to require the company to circulate a written resolution and accompanying statement

Answer 204

1. Right to receive dividends, as long as there are profits available for the purpose (s 830 CA 2006) and as long as the directors have made a recommendation as to its amount (MA 30(2)) and this has been approved by the shareholders. 2. Right to apply to the court for the company to be wound up, on the grounds that it is just and equitable to do so (s 122(g) Insolvency Act 1986 (‘IA 1986’)) – for example, because the management is in deadlock and there is no way of resolving the situation other than winding up the company. 3. Right to remove a director by ordinary resolution (see 3.14.1). 4. Right to remove an auditor by ordinary resolution (see 2.6.2.3). 5. Right to inspect, without charge: * the company’s minutes of general meetings and all shareholders’ resolutions passed otherwise than at general meetings; * all of the company’s statutory registers (see, eg, s 116(1) CA 2006); * directors’ service contracts and any directors’ indemnities; and * any contracts relating to the company’s purchase of its own shares. 6. Right to receive a copy of the company’s annual accounts and reports. 7. Right to seek an injunction under s 40(4) of the CA 2006 to restrain the company from doing something prohibited by its constitution

Answer 205

here one individual is both the sole director and the sole shareholder – a person running his or her business through the medium of a company. If the company is a single- member company, there must be a statement to this effect on the register of members (s 123 CA2006). Similarly, if the number of shareholders increases from one, there must be a statement stating that the company has ceased to have only one member, and the date on which that event occurred. It is an offence to breach s 123.

Answer 206

Sometimes shares will be held by two or more individuals jointly. If this is the case, the register of members needs to record both names but only one address (s 113(5) CA 2006). Breach of this section is an offence.

Answer 207

if a preference share is described as cumulative, this means that the preference shareholder has to be paid any missed dividends from previous financial years as well as the current financial year’s dividend, as long as there are profits available to pay the dividends. This right ranks before payment of dividends to ordinary shareholders in the current financial year. Non- cumulative preference shares do not carry this right: if a dividend is not paid in a particular year, the shareholder loses the right to that year’s dividend and does not have the right to receive it in the future.

Answer 208

Shareholding What shareholders can do 100% pass all resolutions 75% pass or block a special resolution over 50% pass or block an ordinary resolution (shareholders can block an ordinary resolution with exactly 50% of the shares; it does not have to be over 50%, but they need over 50% of the shares to pass an ordinary resolution) 50% block an ordinary resolution over 25% block a special resolution 10% demand a poll vote 5% circulate a written resolution requisition a general meeting circulate a written statement

Answer 209

Shareholding What shareholders can do any shareholder * vote (if they hold voting shares) * receive notice of general meetings * send a proxy to general meetings * receive a dividend (if declared) * receive a share certificate * have their name on the register of members * receive a copy of the company’s accounts * inspect minutes and registers * ask the court for a general meeting * restrain a breach of directors’ duties * bring an unfair prejudice petition * bring winding- up proceedings * instigate a derivative action

Answer 210

may be brought by a liquidator or an administrator personally by making an application to court.

Answer 211

* any person (s 213(2) and s 246ZA(2)) * who is knowingly party to the carrying on of any business of the company * with intent to defraud creditors or for any fraudulent purpose (s 213(1) and s 246ZA(1)). * * Actual dishonesty

Answer 212

* Actual dishonesty must be proven on a subjective basis.  First, the liquidator needs to demonstrate the director's subjective state of knowledge and then  second, show that the director's conduct was dishonest applying the objective standards of ordinary decent people (Ivey v Genting Casinos [2018] AC 39).

Answer 213

o A person found to be liable under s 213 / 246ZA can be ordered to make such contribution to the company’s assets as the court thinks proper. The court does not have the power to include a punitive element in the amount of any contribution to be made. The contribution should only reflect and compensate for the loss caused to the creditors. o Any sums recovered are held on trust for the unsecured creditors generally and not for the defrauded creditor. o Where the court makes an order against a person under s 213 / 246ZA, and that person is also a director, the court is likely also to make a disqualification order under s 10 Company Directors Disqualification Act 1986 (CDDA 1986). o In addition, criminal sanctions can be imposed by the court under s 993 CA 2006, to punish a person knowingly party to fraudulent trading, whether or not the company is being wound up. The penalties are imprisonment (of up to 10 years on indictment) and/or fines.

Answer 214

o When a company faces the prospect of entering into an insolvency procedure, the directors need to be extremely careful in how they act, since they may be held to be **personally liable** to compensate the company and its creditors if found guilty of one of the following: o** Fraudulent trading** (s 213 / 246ZA IA 1986) o **Wrongful trading** (s 214 / 246ZB IA 1986)

Answer 215

o Although claims for fraudulent trading are usually brought against directors, 'any person' is a wide definition and includes banks, who may also be liable for fraudulent trading by virtue of their employees' knowledge (Morris v State Bank of India[2005] 2 BCLC 328).

Answer 216

o It is not necessary to show that all of the company's creditors have been defrauded. Provided at least one creditor has been defrauded, this will be enough to bring a claim

Answer 217

o In practice, a very high standard of proof is required for a successful claim in fraudulent trading, which is likely to be extremely difficult for a liquidator or an administrator to establish. o It is for this reason that claims for fraudulent trading are rare and claims for wrongful trading under s 214 / 246ZB IA 1986 are more often brought against directors.

Answer 218

* Claims for wrongful trading may be brought by a liquidator under s 214 IA 1986 or an administrator under s 246ZB IA 1986.

Answer 219

* The claim can be brought against any person who was at the relevant time a director. o This includes shadow directors as defined in s 251 CA 2006, de facto and non-executive directors as well as executive directors.

Answer 220

o Limb one:  The court must be satisfied that the company has gone into insolvent liquidation or administration and:  at some time before the commencement of the winding up or insolvent administration (for convenience, that time is referred to as the 'point of no return') and  the director knew or ought to have concluded that  there was no reasonable prospect that the company would avoid going into insolvent liquidation (or insolvent administration). * Note that a company goes into insolvent liquidation (or as the case may be, an insolvent administration) at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of winding up or administration (s 214(6) / 246ZB(6)). o Only if the directors know or ought reasonably to know that they cannot avoid a liquidation or administration of their company do they need to consider limb two. If directors assess on reasonable grounds that at a particular moment in time, they consider the company has reasonable prosects of avoiding an insolvency, they do not satisfy limb one and there are no further steps they need take from a wrongful trading point of view. o If, however, they have concluded or ought reasonably to have concluded that there is no reasonable prospect of avoiding an insolvency, they must go on to consider limb two. * Continued trading o It must, therefore, be proven that: o the director in question allowed the company to continue to trade during the period in which they knew or ought to have known that there was no reasonable prospect that the company would avoid going into insolvent liquidation or administration, and o that the continued trading made the company's position worse.  Note however, if the company has not reached the point of no return, then wrongful trading liability cannot arise and there is no need to consider the 'every step' defence which we consider below.

Answer 221

* The court applies the reasonably diligent person test under s 214(4) / 246ZB(4) to what the director ought to have known.

Answer 222

* There are no criminal provisions for wrongful trading, in contrast to fraudulent trading which is both a civil and a criminal wrong.

Answer 223

o If a director is found to be liable for wrongful trading, the court can order that director to make such contribution to the assets of the company as the court thinks fit. The contribution will increase the assets of the company available for distribution to the general body of unsecured creditors. o The court has a wide discretion to determine the extent of the directors’ liability. The contribution will ordinarily be based on the additional depletion of the company’s assets caused by the directors’ conduct from the date that the directors ought to have concluded that the company could not have avoided an insolvent administration or liquidation (ie from the ‘point of no return’). o An order by the court for a director to contribute to the company’s assets under s 214 / 246ZB is compensatory and not penal in nature. An order to contribute may be made against the directors on a joint and several basis. However, the court has a discretion to apportion liability between directors based on their culpability by ordering the more culpable directors to pay more than the less culpable ones. o Where the court makes a contribution order against a director under s 214 / 246ZB, the court also has a discretion to make a disqualification order against them under s 10 CDDA 1986.

Answer 224

o The purpose of s 214 and 246ZB is to ensure that when directors become aware (or ought to become aware) that an insolvent liquidation (or insolvent administration, as the case may be) is inevitable, they are under a duty to take every step possible to minimise the potential losses to the company’s creditors.

Answer 225

o Assuming the company has reached the point of no return, a director may be able to escape liability if they can satisfy the court that, after they first knew or ought to have concluded that there was no reasonable prospect of the company avoiding an insolvent administration or liquidation (ie from the 'point of no return' onwards), they took every step with a view to minimising the potential loss to the company’s creditors.

Answer 226

 Voicing concerns at regular board meetings;  seeking independent financial and legal advice;  ensuring adequate, up-to-date financial information is available;  suggesting reductions in overheads/liabilities;  not incurring further credit with someone who is not an existing creditor or increasing credit owed to an existing creditor; and  Taking advice on steps such as initiating appropriate insolvency procedures or negotiating with creditors to restructure its liabilities.

Answer 227

o Under that test, the facts which a director ought to have known or ascertained, the conclusions which he ought to have reached and the steps which he ought to have taken, are those which would have been known or ascertained, or reached or taken, by a reasonably diligent person having both:  the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by the director in question (an objective test); and  the actual knowledge, skill and experience of that particular director (a subjective test). **The court then applies the higher of the two standards.**

Answer 228

o To minimise the risk of a wrongful trading claim, directors should: o Hold frequent board meetings to review the company’s financial position and write up minutes of each meeting so there is a written record on which the directors can later rely to justify the decisions that they took. It is common for lawyers advising a company in financial difficulties to take an active role in helping directors to prepare minutes and to ensure that board meetings consider all the relevant issues e.g. whether the directors consider on reasonable grounds that the company can avoid an insolvency in which case the minutes should set out the evidence for that view. If limb two is engaged, the board minutes should set out the steps the directors propose to take to minimise loss to creditors. o Take professional advice (e.g., from lawyers, insolvency practitioners and/or accountants) as soon as possible. o Make sure they have up to date financial information about the state of the company’s finances and that this information is considered at the board meetings and acted upon.

Answer 229

o Under s 1157 CA 2006, the court may ordinarily relieve a director from liability in proceedings for negligence, breach of duty or breach of trust, on such terms as it thinks fit, if satisfied that he/she acted honestly and reasonably and having regard to all the circumstances of the case, the director ought fairly to be excused. However, that relief is not available in wrongful trading proceedings (Re Produce Marketing Consortium Ltd[1989] BCLC 513, ChD).

Answer 230

o Transaction for an undervalue o Within 2 years prior to onset of insolvency o Company insolvent at time / as a result (this is presumed with connected persons)

Answer 231

o Floating charge created for no new consideration o within 12 months prior to onset of insolvency o Within 2 years if connected person o Company insolvent at time / as a result

Answer 232

o Transaction for an undervalue o Intention to defraud creditors  Makes it hard to prove this transaction o No need for company to be insolvent o No time limit before insolvency to consider

Answer 233

o Company puts creditor in better position and influenced by desire to prefer o Within 2 years prior to onset of insolvency o 6 months if connected person and presumption of preference o Company insolvent at time / as a result

Answer 234

o The IA 1986 gives both a liquidator and an administrator the ability to challenge certain transactions that have taken place within specified statutory periods prior to the insolvency of a company. These are known as ‘voidable’ transactions. o The aim of a challenge is to restore the company to the same position it would have been in had the transaction not taken place and thereby, increase the funds available in the insolvent estate for the benefit of creditors. o These provisions are often described as ‘**clawback’** because they can result in an order reversing transactions or more usually, providing for financial restitution to be paid

Answer 235

o ‘Connected persons’ with the company (s.249) – are directors (including shadow directors), associates of directors and associates of the company. o ‘Associates’ of director/company (s.435) – include spouses, business partners, employees, relatives including brother, sister, uncle, aunt, niece, nephew, etc. (widely defined in s.435(8)), certain trustees, a company which is controlled by the director and a company which is itself associated with the company in question, where both are mutually controlled by some other company or person. o Both associated and connected persons are connected persons

Answer 236

o Insolvency means ‘inability to pay debts’ under s 123 ie the company is insolvent on either the cash flow or balance sheet basis.

Answer 237

o The ‘onset of insolvency’ is set out in ss.240(3) and 245(5) as follows: o Administration: date of filing of application (court procedure) or notice of intention to appoint or (if none) appointment (out-of-court procedure). o Liquidation: date of commencement of winding up (date of resolution for members’ or creditors’ voluntary winding up or date of presentation of petition for compulsory winding up (s.129)).

Answer 238

o Even if all of the requirements set out above are satisfied, no order will be made to set aside the transaction if the court is satisfied that:  the company entered into the transaction in good faith and for the purpose of carrying on its business; and  at the time there were reasonable grounds for believing that the transaction would benefit the company. o This defence is often relied on in practice and can save many transactions which would otherwise be open to challenge. o One example when the defence may be available is where a company grants new security to stave off a genuine threat made by an unsecured bank to terminate facilities and begin winding up proceedings if the security is not granted, in circumstances where the directors consider on reasonable grounds that the company can turn around its financial difficulties and thereby avoid entering into an insolvency procedure.

Answer 239

o The court has a discretion to make such order as it thinks fit to restore the position as if the company had not entered into the transaction (s 238(3)). o Section 241(1) provides a non-exhaustive list of the types of restoration order that the court might make under s 238 (and also under s 239 in relation to voidable preferences; see below). A common order would be for the counterparty to pay the amount of the undervalue the company sustained under the transaction o Any court order should not prejudice a subsequent purchaser from the party which transacted at an undervalue with (or received a preference from) the company, provided they were acting ‘in good faith and for value’ (s 241(2)). o However, under s 241(2A) there is a rebuttable presumption that an acquisition by a subsequent purchaser was not in good faith where the subsequent purchaser either:  had notice of the relevant surrounding circumstances (ie the transaction at an undervalue or preference) and of the relevant proceedings; or  was connected with or was an associate of either the company or the party which transacted at an undervalue with (or received a preference from) the company. In such circumstances the burden of proof shifts to the subsequent purchaser to show good faith.

Answer 240

o The court may make such order as it thinks fit to restore the position to what it would have been but for the transaction in question (s 423(2)). A non-exhaustive list of orders is set out in s 425(1).

Answer 241

o The defence available is an absence of the desire to prefer required by s 239(5).

Answer 242

o The court has a discretion to make an order to restore the position as if the company had not given the preference (s 239(3)). o Section 241(1) provides a non-exhaustive list of the types of restoration order that the court may make. The range of orders the court can make are the same as with TUVs. A common court order would in the case of an unsecured creditor paid ahead of others is for the preferred creditor to pay to the liquidator or administrator the money it had received from the company.

Answer 243

o Even if the above requirements are met, a floating charge will be valid to the extent that ‘new money’ or other fresh consideration (which can include goods or services) is provided to the company (or existing debts of the company are extinguished) in return for the grant of the floating charge on or after its creation (s 245(2)). o The effect of s 245(2) is that if a floating charge is granted to secure the repayment of a new loan made on or after the creation of the charge, then it will be valid. o An example of when a floating charge would be void is where an existing unsecured creditor is granted a floating charge by a company which is insolvent (as defined above) and the charge purports to secure the repayment of existing monies owed to that creditor. If s 245 did not apply, such an unsecured creditor would thereby improve its position in the order of priority if the company later went into an insolvency procedure, which would be unfair on the company’s other unsecured creditors. However, if (and to the extent that) an existing unsecured creditor provides further credit to the company (or to the extent that any other new credit is given by a new creditor) then that creditor is entitled to have the protection of a valid floating charge.

Answer 244

floating charge was valid because (1) each time the company used its overdraft facility after the creation of the floating charge, this was deemed to be ‘new money’ advanced by the bank (2) The rule in **Devaynes v Noble [1816] 1 Mer. 572 **provides that payments into a bank account by the company is first applied in discharging the oldest advances made by the bank. As the company had paid more than £67,000 into the account since the grant of the floating charge, it could be said that the pre-charge debt of £67,000 had been paid off and that the existing overdraft balance at the time of appointment of the liquidator was ‘new’ debt.

Answer 245

o Where a floating charge is void under s 245, only the security (and its advantage to a floating charge creditor in the order of priority) is void and not the debt itself. o Remember that a floating charge is also void against a liquidator, administrator and other creditors if it is not duly registered with Companies House under s 859H CA 2006. o Note that a floating charge granted to a creditor may also be voidable as a transaction at an undervalue or a preference under s 238 and 239.

Answer 246

The floating charge is invalid for the existing overdraft of £10,000 but valid in respect of the additional £15,000 of ‘new money’.

Answer 247

A. The floating charge was created within the relevant time. This means the administrator could seek to challenge the floating charge if Company D was insolvent at the time or became insolvent as a result of granting the floating charge. If the administrator is successful, the floating charge will only be valid to secure £10,000 and not the full amount of £30,000. a. Correct but not the best answer – could pay the whole £30,000 if 2£20,000 was paid in because it would pay off the old debt allowing the company to use the whole of the overdraft again and everything then becomes new B. The floating charge was created within the relevant time. This means the administrator could seek to challenge the floating charge if Company D was insolvent at the time or became insolvent as a result of granting the floating charge. If the administrator is successful, the floating charge will only be valid to secure £20,000 and not the new increase to the overdraft of £10,000. a. Wrong got it the wrong way round C. The floating charge was created within the relevant time. This means the administrator could seek to challenge the floating charge if Company D was insolvent at the time or became insolvent as a result of granting the floating charge. However, the floating charge will be valid to secure £30,000 provided Company D has paid £20,000 or more into its account since the creation of the floating charge. a. Correct and the better answer D. The floating charge was created within the relevant time. This means the administrator could seek to challenge the floating charge if Company D was insolvent at the time or became insolvent as a result of granting the floating charge. If the administrator is successful, the floating charge will not be valid, and the overdraft will be unsecured. a. Not right – the floating charge is valid because of new consideration E. The floating charge was created within the relevant time. This means the administrator could seek to challenge the floating charge if Company D was insolvent at the time or became insolvent as a result of granting the floating charge. If the administrator is successful, the floating charge will not be valid, but the overdraft will be secured by the existing fixed charge that the bank has. a. Red herring

Answer 248

· Do nothing for the present time; · Do a deal with some or all of the creditors to restructure the company’s liabilities; · Appoint an administrator; · Request the appointment of a receiver (where there is a secured creditor); · Or Place the company into liquidation.

Answer 249

· is unable to pay its debts as they fall due (s 123(1)(e)) known as the cash flow test; · has liabilities that are greater than its assets (s 123(2)) known as the balance sheet test; · does not comply with a statutory demand for a debt of over £750 (s 123(1)(a)), this provides evidence that the company is cash flow insolvent; or · has failed to pay a creditor to satisfy enforcement of a judgment debt (s 123(1)(b))

Answer 250

* The directors must continually review the financial performance of a company and recognise when it is facing financial difficulties.

Answer 251

· Do nothing - the directors should, when deciding to do nothing, bear in mind the potential risk of personal liability under IA 1986 and a potential breach of their directors’ duties under the Companies Act 2006. · Do a deal - reaching either an informal or formal arrangement with some or all of the company’s creditors with a view to rescheduling debts so the company has less to pay and/or more time to pay. · Appoint an administrator - this is a collective formal insolvency procedure (( which considers the interests of all creditors) and will be considered later in this topic. · Request the appointment of a receiver - this is an enforcement procedure where a secured creditor enforces its security by appointing a receiver who then sells the secured assets with a view to paying the sale proceeds (subject to certain prior claims) to the secured creditor. · Place the company into liquidation

Answer 252

preferences, transactions at an undervalue, fraudulent and wrongful trading, setting aside a floating charge

Answer 253

* A CVA is an arrangement agreed by the company's unsecured creditors and members to achieve a restructuring of the company's unsecured liabilities.

Answer 254

* The Restructuring Plan is a court-sanctioned compromise between a company and its creditors and shareholders to restructure the company’s debts.

Answer 255

* To avoid the time and cost of formal insolvency arrangements or proceedings or indeed the consequences where they might bring the life of the company to an end, a company can negotiate informally with its creditors. Although these may be contractually binding agreements they are not regulated by IA 1986 or CIGA 2020 or any other insolvency related statute. The difficulty is in getting all of the creditors to agree who the company want to bind to agree to such informal arrangements.

Answer 256

* To obtain creditor agreement, the company may have to do one or more of the following: · 1.Grant new or additional security; · 2.Replace directors or senior employees; and/or · 3.Sell failing businesses/subsidiaries or profitable ones to raise cash; · 4.Reduce costs e.g. through a redundancy programme or the closure of unprofitable businesses; and/or · 5.Issue new shares to the creditors (this is known as a ‘debt for equity swap’) * As a preliminary step to negotiating an informal arrangement with relevant creditors, a company may ask creditors to enter into a Standstill Agreement whereby the creditors agree not to enforce their rights or remedies for a specified period to give the company time to negotiate an arrangement with them to resolve the company's financial issues.

Answer 257

for struggling companies that are not yet in a formal insolvency process. Pre-insolvency moratoriums can be used by a company to buy itself some time to reach an informal agreement with all or some of its creditors or as a preliminary step to proposing a CVA, a restructuring plan, or a scheme of arrangement.

Answer 258

* A 'moratorium' is a period during which creditors are unable to take action to exercise their usual rights and remedies, thereby creating a breathing space for the company to attempt to resolve the situation.

Answer 259

· no creditor can enforce its security against the company’s assets; · there is a stay of legal proceedings against the company and a bar on bringing new proceedings against it; · no winding up procedures can be commenced in respect of the company (unless commenced by the directors) and no shareholder resolution can be passed to wind up the company (unless approved by the directors); and · no administration procedure can be commenced in respect of the company (other than by the directors).

Answer 260

* A company can obtain a pre-insolvency moratorium by filing documents at court including: · A statement that the company is, or is likely to become, unable to pay its debts as they fall due. · A statement from a licensed insolvency practitioner (usually an accountant), known as a Monitor for these purposes, stating that in their view, it is likely that a moratorium will result in the rescue of the company as a going concern. The Monitor has a supervisory function during the pre-insolvency moratorium.

Answer 261

* The pre-insolvency moratorium lasts for 20 business days but can be extended by the directors for a further 20 business days. Further extensions are possible with the consent of a requisite majority of creditors and/or court order. The maximum period is one year subject to a court order to extend further.

Answer 262

* The moratorium will terminate automatically if the company enters liquidation or administration, or at the point that a CVA is approved, or a court sanctions a restructuring plan or a scheme of arrangement.

Answer 263

* The company does not have to pay pre-moratorium debts whilst the pre-insolvency moratorium subsists (known as a 'statutory repayment holiday'). These are debts which have fallen due before or during the moratorium by reason of an obligation incurred before the moratorium. However, the statutory repayment holiday does not apply to the following pre-moratorium debts which must still be paid: · The Monitor's remuneration or expenses; · Goods and services supplied during the moratorium; · Rent in respect of a period during the moratorium; · Wages or salary or redundancy payments; and · Loans under a contract involving financial services. This means that a company remains liable to pay all sums due to a bank which made a loan to it before it obtained the moratorium. This is an important carve out in practice.

Answer 264

* All moratorium debts must be paid. These are debts that fall due during or after the moratorium by reason of an obligation incurred during the moratorium. They usually relate to payment for goods or services ordered by the company during the moratorium period. * This means, that in practice, a company must be ‘cash flow’ solvent and able to pay its debts as they fall due so is capable of paying its way during the moratorium period.

Answer 265

· a Company Voluntary Arrangement under ss 1-7 IA 1986; or · a Restructuring Plan under CIGA 2020, the provisions of which are contained in part 26A CA 2006.

Answer 266

* The main advantage of a formal arrangement is that if the requisite majorities of creditors and/or shareholders vote in favour of it, it is legally binding, even if some of those creditors voted against it or did not vote on it at all or did not receive notice of the relevant procedure.

Answer 267

* A CVA, is a compromise between a company and its creditors. CVAs are defined in s 1(1) IA 1986 as: · “a composition in satisfaction of its debts or a scheme of arrangement of its affairs”. * The essence of a CVA is that the creditors agree to part payment of the debts owed to them and/or to a new extended timetable for repayment. The CVA proposal once approved in accordance with IA 1986, must be reported to court but there is no requirement for the court to approve the CVA. * The CVA is supervised and implemented by a Supervisor who is an Insolvency Practitioner. During the CVA the company's directors remain in office and will continue to run the company's affairs subject to the terms of the CVA. * CVAs can also be used together with administration or liquidation

Answer 268

* 1.**The directors draft a CVA proposal and appoint a Nominee** (who must be an insolvency practitioner). If the company is in liquidation or administration, the administrator or liquidator drafts the CVA proposal and acts as Nominee. * 2.**The directors must submit the CVA proposal and a statement of the company's affairs to the Nominee **(although in practice it is the Nominee who drafts the CVA proposal). * 3.T**he Nominee considers the CVA proposal and, within 28 days, must report to court on whether in their opinion, the company's creditors and shareholders should be asked to vote on the CVA proposal-** s 2(1) and s2(2). * 4.**The Nominee must allow at least 14 days for creditors to vote on the CVA proposal.** A meeting of the shareholders must take place within 5 days of the creditors' decision. * 5.**Voting** – the CVA proposal will be approved if: · **at least 75% in value** (i.e, value of debts owed) of those voting on the CVA proposal (excluding secured creditors) vote in favour; · If the above majority is obtained, the decision of those creditors will be invalid if those voting against the CVA proposal include more than half of the total value of creditors unconnected to the company (e.g. not a related company, shareholder or director of the company proposing the CVA); and · **a simple majority** of shareholders/members vote in favour. * Note in practice, it is only the approval of the CVA proposal by creditors which matters. If the creditors vote in favour of the CVA proposal but the members vote against, the creditors’ vote will always prevail. * 6.**The Nominee reports to court that the CVA has been approved**. * 7.**The Nominee usually becomes the Supervisor, and the Supervisor will implement the CVA proposal**.

Answer 269

* A CVA is binding on all unsecured creditors, including those who did not vote or voted against it. However, secured or preferential creditors are not bound unless they unanimously consent to the CVA (s 4 IA 1986) – this is a major disadvantage of the CVA procedure. * Directors can still make decisions * A creditor can challenge a CVA within 28 days of the CVA's approval by creditors being reported to the court on the grounds of 'unfair prejudice' that is the CVA treats one creditor unfairly compared to another or material irregularity relating to the procedure which the company has followed in seeking approval of the CVA, for example, the way in which the creditors' votes were calculated. Subject to that, the CVA becomes binding on all creditors at the end of the 28-day challenge period. * The Supervisor's role will be to agree creditors’ claims, collect in the unsecured funds to pay dividends (sums owed or a proportion thereof) to the creditors and generally ensure that the company complies with its obligations under the CVA. When a CVA has been completed, the Supervisor will send a final report on the implementation of the proposal to all shareholders/members and creditors who are bound by the CVA.

Answer 270

* CVAs are commonly used within the retail sector to reach a compromise with creditors, particularly landlords to agree a reduction in rent in order to allow the company to attempt to continue trading. CVAs can be used alone or as part of an administration. * From the company's perspective, CVAs are advantageous as the directors remain in control of the company, and the company can continue to trade subject to the terms of the CVA proposal with the hope of the company surviving as a going concern. However, the major disadvantage is that a CVA cannot bind secured or preferential creditors without their consent. * Trade creditors tend to support CVAs as they are likely to recover more than if the company goes into administration or liquidation. For landlords, a CVA may result in heavily discounted rents and a loss of income. Equally, retail properties are not easy to re-let so a landlord may prefer to receive reduced rents rather than have empty properties generating no income at all if CVA proposals are not approved.

Answer 271

the purpose of the Restructuring Plan (Plan) is to compromise a company’s creditors and shareholders and restructure its liabilities so that a company can return to solvency. * Directors still run the company * A Plan is a hybrid of a CVA and a ‘scheme of arrangement’ under CA 2006, (the latter is a type of restructuring mechanism that may be used for solvent or insolvent companies). The Plan, however, can only be used by companies which have or are likely to encounter financial difficulty. * A Plan requires court approval which is called a ‘sanction’. Creditors and members must be divided into classes and each class which votes on the Plan must be asked to approve it. The votes needed by the class meetings for approval are similar to those under a CVA, so that the Plan must be approved by at least 75% on value of those voting in each class. * **The Plan only becomes binding if the court sanctions it. If the court sanctions the Plan, it binds all creditors including secured creditors**.

Answer 272

* Novel features of the Plan include: · The court can exclude creditors and shareholders from voting even if they are affected by the Plan if they have no genuine economic interest in the company; · The court can sanction a plan which brings about a “cross-class cram down” if it is just and equitable to do so even if one or more classes do not vote to approve the Plan. * A cross class cram down means that one rank of creditor can force the Plan on another class of creditor who has voted against the Plan. A cramdown of shareholders means forcing shareholders to accept a debt for equity swap in which creditors are able to hold new shares in the company in place of their debt claims. * The Plan is likely to be used by directors alongside the pre-insolvency moratorium but can also be used by administrators and liquidators, considered in later topics. * The Plan may be better than a CVA because it can compromise the rights and claims of secured creditors and shareholders. A CVA cannot do this. The other advantage of a Plan is that it can be sanctioned by the court to bind all creditors even where the requisite majority approval is not obtained in every voting class of creditors and shareholders.

Answer 273

* Who can initiate? · Directors, liquidator or administrator * Approval? · At least 75% in value of unsecured creditors but without more than 50% of unconnected creditors voting against · Over 50% of shareholders · Look at who voted – unconnected means they have no input in the company * Who does it bind? · Binds all unsecured creditors * Advantages · Not court sanctioned so can be quicker and less costly to implement * Limitations · Preferential & secured creditors not bound without express consent

Answer 274

* Who can initiate? · Company, creditor, member, liquidator or administrator * Approval? · Sanctioned by the court · At least 75% in value of each affected class of creditors/shareholders * Court can override this – clam-down * Who does it bind? · Binds all creditors and shareholders * Advantages · Binds all creditors including dissenting creditors and potentially classes of creditors who do not approve the plan as the court may sanction a plan even if one or more classes do not approve * Limitations · Court process can be costly and time consuming and need to consider if creditors are in separate classes for voting

Answer 275

* Receivership is an enforcement procedure for the benefit of a secured creditor.

Answer 276

· (1) administrative receivership; · (2) fixed charge receivership; · and (3) court-appointed receivership. * Court-appointed receivership occurs when someone had already tried to ‘wind up’ the company

Answer 277

* Once the administrator is appointed, the directors are unable to exercise any of their powers without the consent of the administrator. The administrator has wide powers to manage the company and may also bring actions against directors. * The appointment of an administrator gives rise to a moratorium, protecting the company from hostile actions by creditors.

Answer 278

These objectives are in a specific order and are: · First, to rescue the company as a going concern, or if that is not reasonably achievable, · Secondly, to achieve a better result for the company's creditors as a whole than would be likely if the company were wound up..., or if that is not reasonably achievable, and · Thirdly, to realise the company's property in order to make a distribution to one or more secure or preferential creditors. * These cascading objectives are extremely important as they guide the actions of the administrator throughout the process. Objective (b) is most likely to be achieved.

Answer 279

: the court procedure and the out of court procedure.

Answer 280

· Apply to court - Interim Period including interim moratorium – Hearing and order · Appointment of administrator – out of court procedure * Appointing administrators out of court is far more common than using the court procedure. There are two out of court procedures for the appointment of administrators. * First under Sch B1, the directors or the company may appoint an administrator out of court (in practice it is usually the directors who appoint under Sch B1 Para 22 rather than the company). Secondly, under Sch B1 Para 14 a holder of a qualifying floating charge holder (“QFC”) may appoint an administrator out of court. o QFCs are usually banks o Can have more than one QFC holder – they would be ranked in priority o QFC are interested in this because the floating charge is on the day to day running of the business * A QFC means a floating charge which o (I ) together with any other security that the holder of the floating charge holds relates to the whole or substantially the whole of the company's property and o (ii) the document that creates it provides that either Sch B1 para 14 IA 1986 applies to the charge or that the holder has the power to appoint an administrator or an administrative receiver. - CONDITION WITHIN ITS TERMS * Most floating charges held by creditors will be QFCs. If a bank lends to a company, it will usually request a QFC to secure the loan. * If there is an appointment under Para 22 by the directors, they must file a notice of intention to appoint ('NOI') at court and, not less than 10 business days later file a notice of appointment at court. The administrators' appointment takes effect when the second notice is filed at court. * If the company has granted a QFC then the process is different. When the directors file the NOI at court, they must also send the NOI to the holder of the QFC. The QFC then has 5 business days to appoint its own choice of administrator. If the QFC does not do this, the directors can file the notice of appointment in the usual way and the directors' choice of administrator is appointed. * If a QFC holder wishes to appoint an administrator out of court, it must first enforce its security in accordance with the terms of the QFC and the appointment will take effect when it has filed a notice of appointment at court. * Where there is more than one holder of a QFC, a holder of a QFC which ranks below another QFC in priority (normally determined by a priority agreement entered into by the QFC holders), it must first give two business days’ notice to the holders of a QFC which have priority and can only proceed with the appointment if the higher ranking QFC holders consent to the appointment.

Answer 281

· Company/Directors * File NOI &serve Qualifying Floating Charge Holder - Wait 5 business days - Appoint and file Notice of Appointment - Administrator Appointed! * QFCH (1st ranking) * Appoint and file notice of appointment - Administrator appointed! * Administrator appointed! - Appoint and file notice of appointment

Answer 282

* The administrator is an officer of the court and has a duty to act in the interests of all the creditors to achieve the purposes of the administration. When an administrator is in office, The directors are unable to exercise any of their management powers without the consent of the administrator.

Answer 283

** Administrators have wide powers under IA 1986 to 'do all such things as may be necessary for the management of the affairs, business and property of the company'(s 14(1) IA 1986). These include the powers to: · Remove and appoint directors (s 14, Sch 1 and para 61 Sch B1); · Dispose of property subject to a floating charge (para 70 Sch B1); · Dispose of property subject to a fixed charge (with the court's consent) (Para 71 Sch B1) * In addition, administrators may bring proceedings against directors for fraudulent and wrongful trading (see later topic).

Answer 284

* Once appointed, the administrator has up to eight weeks to produce a report setting out proposals for the conduct of the administration which may include proposals to restructure liabilities through a scheme of arrangement, a restructuring plan or a CVA. This is sent to all creditors for their approval. If the administrator's proposals are rejected, the company will usually be placed into liquidation. However, if the administrator's proposals are accepted, the administrator will proceed with their proposals. If their proposals are achieved, the company will exit administration. There is a 12-month fixed time limit for the completion of administrations, although it is possible to obtain extensions.

Answer 285

· 1.No order or resolution to wind up the company can be made or passed; · 2.No administrative receiver of the company can be appointed; · 3.No steps can be taken to enforce any security over the company’s property or to repossess goods subject to security, hire purchase and retention of title; · 4.No legal proceedings, execution or other process can be commenced or continued against the company or its property, and · 5.A landlord cannot forfeit a lease of the company’s premises. * Note: Where there is an interim moratorium following a court application to appoint an administrator or the directors file a NOI, items (a), (c)-(e) above apply, but only the court can consent to the creditor taking the step in question. In addition, the interim moratorium does not prevent a QFC holder from appointing an administrator.

Answer 286

* A pre-packaged administration is where the business and assets of an insolvent company is prepared for sale to a selected buyer prior to the company's entry into administration. The terms of the sale agreement are negotiated and agreed before the administrators’ appointment and the administrators complete the sale with the buyer immediately following their appointment. * Pre-packaged sales have the advantage that the goodwill and continuity of the business are not damaged by the administration and certainty of result is achieved for the creditors. Often the pre-pack buyer will be an entity associated with the holder of the QFC, one or more of the existing shareholders or directors of the company. * Pre-packaged sales are controversial, particularly where the sale is to existing shareholders or directors. The concern is often that the sale does not take place at the proper price and that creditors are given insufficient information to determine whether the sale was in their best interests. * The Administration (Restrictions on Disposal to Connected Persons) Regulations 2021 restrict the ability of an administrator to enter into a pre-packaged sale with the company's directors or shareholders (or persons connected to them) unless the sale has been approved in advance by the creditors or the buyer has obtained an evaluator's qualifying report. This report must be sent to Companies House and all creditors.

Answer 287

* Administrative receivership is now a rare procedure and is prohibited in most cases. When applicable, a secured creditor with fixed and floating charges over all of the company's assets may appoint an AR. The AR will take control of the secured assets, sell them and use the proceeds to repay the debt owed to the secured creditor. * It is an enforcement procedure carried out in the interests of the secured creditor) which appointed the AR rather than a collective procedure, such as administration or liquidation, which is conducted in the interests of creditors as a whole. Only a licensed insolvency practitioner can be appointed as an AR. ARs may only be appointed by QFC holders in two cases, where the floating charge was created before 15 September 2003; or where one of the statutory exceptions applies.

Answer 288

· Fixed charge receivers are the most common type of receivership and the receiver does not have to be a licensed insolvency practitioner. · Fixed charge receivers are appointed by the holders of a fixed charge pursuant to the terms of the relevant security document. They are appointed to enforce the security, manage and sell the secured assets (most commonly, land and buildings) and out of the sale proceeds, repay the debt that is owing to their appointor, often a bank. They owe their duties primarily and exclusively to the appointor (otherwise known as the chargee or mortgagee; they owe a limited duty to the debtor (otherwise known as the chargor or mortgagor) to act in good faith in the course of their appointment. In exercising their powers receivers usually act as an agent for the chargor/mortgagor which is a legal anomaly but facilitates the conduct of the receivership. Receivers usually have extensive powers set out in the security document and some limited powers under the Law of Property Act 1925 These powers typically include the ability to sell, mortgage and collect rents from the secured assets. · A fixed charge receiver becomes the receiver and manager only of the assets secured by the security document and is only entitled to deal with those and not any other assets of the company. · A fixed charge receiver cannot be appointed while a pre-insolvency moratorium subsists or if the company is in administration.

Answer 289

· Court-appointed receivers are relatively rare at the moment. They are appointed by the court and their powers and duties are set out in the court order. · Appointments are sometimes made where shareholders are locked in dispute. Receivers may also be appointed by the court under the Proceeds of Crime Act 2002 and associated legislation. Given the move towards imposing criminal sanctions for corporate misconduct, such orders are likely to become more common. · The court-appointed receiver’s duty is typically to run the business until the dispute is determined.

Answer 290

* During liquidation all employees will be automatically dismissed; the directors lose their powers and are automatically dismissed from office.

Answer 291

compulsory liquidation or voluntary (members' or creditors' voluntary liquidation)

Answer 292

solvent companies where the directors swear a statutory declaration of solvency.

Answer 293

* Once the liquidation commences, the directors lose their powers and the liquidator takes control of the company.

Answer 294

* The role of the liquidator is to realise the assets of the company and to distribute these in accordance with the statutory order of priority.

Answer 295

* Liquidation is the process by which a company's business is wound up and its assets transferred to creditors and (if there is a surplus of assets over liabilities) to its members. * The company will then be removed from the register of companies and dissolved. * The terms "liquidation" and "winding up" are used interchangeably. * However, it is important to note that it is not only insolvent companies which are wound up or liquidated. Solvent companies may also be wound up and this is not uncommon. Companies may be wound up simply because the business opportunity has come to an end, due to internal disputes, or where the members wish to move on to new ventures.

Answer 296

* Members' voluntary liquidation * Creditors' voluntary liquidation.

Answer 297

* Following liquidation, the company’s life is generally brought to an end automatically by dissolution. In the case of a compulsory liquidation, this will be three months after notice by the liquidator to the Registrar of Companies that the winding up of the company has been completed. * In the case of voluntary liquidation, dissolution will occur three months from the filing by the liquidator of the final accounts and return. On dissolution, the company ceases to exist.

Answer 298

* Compulsory liquidation is a court-based process for placing a company into liquidation. * To begin the process, an applicant presents a winding up petition to the court under which the applicant requests the court to make a winding up order against the company on a number of statutory grounds. * When the court grants a petition for compulsory liquidation, the order operates in favour of all the creditors and contributories (members and some former members) of the company. * The Official Receiver will become the liquidator and continue in office until another person is appointed (s 136(2) IA 1986). The Official Receiver will notify Companies House and all known creditors of the liquidation. The Official Receiver has the power to summon separate meetings of the company's creditors and contributories for the purpose of choosing a person to become the liquidator of the company in his place (s 136(4)).

Answer 299

* The following persons can apply to the court for the issue of a winding up petition: · a creditor; · the company (acting by the shareholders; this would happen where there are insufficient assets in the company to fund a voluntary liquidation); · the directors (by board resolution); again, this would happen where there are insufficient assets to fund a voluntary liquidation; · an administrator; · an administrative receiver; · the supervisor of a CVA; and · the Secretary of State for Business, Energy & Industrial Strategy (on public policy grounds).

Answer 300

(1) the company is unable to pay its debts; and (2) it is just and equitable for the company to be wound up.

Answer 301

* Failure by the company to comply with a creditor’s statutory demand. A statutory demand is a written demand in a prescribed form requiring the company to pay a specific debt. The statutory demand can only be used if the debt exceeds £750 and is not disputed on substantial grounds. The company has 21 days in which to pay the debt, failing which the creditor has the right to petition the court to wind up the company. * The creditor sues the company, obtains judgment and fails in an attempt to execute the judgment debt. * Proof to the satisfaction of the court that the company is unable to pay its debts as they fall due (the "cash-flow test"). The cash flow test is usually satisfied by going through the statutory demand process in 1 above but that is not essential. * Proof to the satisfaction of the court that the value of the company’s assets is less than the amount of its liabilities, taking into account contingent and prospective liabilities**(the "balance sheet test")**.

Answer 302

* To prevent an insolvent company from transferring its assets to third parties at the expense of its creditors, under s 127 IA1986 certain dispositions of a company's property, transfers of its shares and changes to its members will be void if made after the commencement of the winding-up. This means if these dispositions etc were made during the period between the presentation of the winding up petition and a winding up order being made, then they will be void. * Once a court finds that the grounds for a winding up order are satisfied and it makes a compulsory winding up order, the consequences include as follows: · an automatic stay will be granted on commencing or continuing with proceedings against the company; · all employees will be automatically dismissed, and · the directors lose their powers and they are automatically dismissed from office.

Answer 303

· Where the company's purpose according to the articles has expired and resolution of the shareholders – RARE · Where the company resolves by special resolution to wind up the company. The company must be solvent – MVL · Where the company resolves that it is advisable to wind up the company due to its inability to carry on its business. Here the company is insolvent– CVL

Answer 304

* This method of voluntary winding up may only be used for companies which are **solvent**. * The directors are required to swear a **declaration of solvency** stating that they have made a full enquiry into the company's affairs and they have formed the opinion that the company will be able to pay its creditors in full, together with interest at the official rate, within a period not exceeding 12 months from the commencement of the winding up (s 89(1) IA 1986). The declaration must also contain a statement of the company's assets and liabilities as at the latest practicable date before making the declaration. * Any director making a declaration of solvency who does not have reasonable grounds for their opinion is liable to a fine or imprisonment (s 89(4) IA 1986). If the debts are not actually paid in full within the specified period it will be presumed that the director did not have reasonable grounds for his opinion. * The **members must then pass a special resolution to place the company into MVL and an ordinary resolution to appoint a liquidator**. The winding up commences when the special resolution is passed (s 84(1) and s 86 IA 1986). * On a MVL, if the liquidator considers that the company will be unable to pay its debts, they must change the members' winding up into a creditors’ voluntary liquidation.

Answer 305

* The procedure is for the **shareholders to pass a special resolution to place the company into a CVL and an ordinary resolution to appoint a nominated liquidator.** * Within 14 days of the special resolution being passed the directors of the company must ask the company’s creditors to either approve the nominated liquidator or put forward their own choice of liquidator. Where the creditors’ choice of liquidator differs from that of the company’s shareholders, the creditors’ nomination will take precedence. * The directors must also draw up a statement of the company’s affairs (setting out the company’s assets and liabilities) and send it to the company’s creditors.

Answer 306

the appointment of a liquidator terminates the management powers of the company's directors, and these powers are transferred to the liquidator together with their fiduciary duties, meaning that liquidators must act in good faith, avoid conflicts of interest and not make a secret profit. * The liquidator in both a CVL and a compulsory liquidation have extensive statutory powers. The principal functions of a liquidator in a winding up by the court are: · To secure and realise the assets of the company then distribute to the company's creditors (s 143 IA 1986); and · To take into their custody or under their control all the property of the company (s 144 IA 1986).

Answer 307

* The liquidator must be either a qualified Insolvency Practitioner (s 230 IA 1986) or the Official Receiver (appointed by the court in the short term) and acts as an officer of the court.

Answer 308

· Sell any of the company's property; · Execute deeds and other documents in the name of the company; · Raise money on the security of the company’s assets; · Make or draw a bill of exchange or promissory note in the name of the company; · Appoint an agent to do any business that the liquidator is unable to do; · Do all other things that may be necessary to wind up the company's affairs and to distribute its assets. · Carry on the business of the company, but only to the extent that is necessary for the beneficial winding up of the company. · Commence or defend court proceedings in the name of the company, for example to recover debts owed to it or dispute debts alleged to be owed by the company. · Pay debts and compromise claims.

Answer 309

· § Disclaim onerous property (s178 IA 1986); · § Apply to court to set aside a transaction at an undervalue (s238 IA 1986); · § Apply to court to set aside a preference (s 239 IA 1986); · § Apply to court to set aside, or vary the terms of, an extortionate credit transaction (s 244 IA 1986); · § Claim that a floating charge created for no new, or inadequate, consideration is invalid (s 245 IA 1986); · § Apply to court to set aside a transaction that will defraud creditors (s 423 IA 1986). * Note that many of these powers also apply to administrators.

Answer 310

* 1.Liquidator’s fees and expenses of preserving and realising assets subject to fixed charges. · First because otherwise they wouldn’t do it!!!! * ALL ASSETS ARE SOLD BEFORE POINT 1 * 2.Amount due to fixed charge creditor out of the proceeds of selling assets subject to the fixed charge. * 3.Liquidator's other remuneration, costs and expenses. * 4.Preferential creditors (the first tier and then the secondary tier). · Employees and HMRC (crown) * 5.Creation of the prescribed part fund (if available) for unsecured creditors. * 6.Amount due to creditors with floating charges. * 7.Unsecured/trade creditors (including payment of the prescribed part and anything left over after paying the floating charge holders). * 8.Interest owed to unsecured creditors. * 9.Shareholders.

Answer 311

· The proceeds of selling assets which are subject to a fixed charge (or mortgage) must first be used to pay off the debt secured by such charge (or mortgage). The proceeds will be paid net of the liquidator's costs and associated fees of selling the assets (e.g. the liquidator's fees, legal costs and surveyor or estate agent fees in selling property). · If the proceeds are not sufficient to discharge the debt in full, then the creditor may be able to recover the balance lower down the order of priority if it also has a floating charge which secures the debt but if not, the unpaid part of the debt will rank as unsecured debt.

Answer 312

* Other costs and expenses of the liquidation * Preferential debts (Schedule 6) * Prescribed part fund * Floating charge creditors * Unsecured creditors * Interest on unsecured (including preferential) debts * The shareholders

Answer 313

· This includes all other costs and expenses of the liquidation, including the costs of selling assets secured by a floating charge and the costs and expenses incurred in pursuing litigation (such as actions in respect of wrongful trading or voidable transactions). Such litigation will require prior approval from preferential creditors and floating charge holders, or alternatively from the Court, otherwise the liquidator cannot claim the costs of litigation. The reason for this rule is that it is these creditors who will effectively pay the costs of litigation should it fail.

Answer 314

· The first tier consists of (i) employee claims for unpaid remuneration due in the four months before the ‘relevant date’ (generally the date of the winding up resolution or petition) but subject to a maximum of £800 per employee plus accrued holiday pay, and · (ii) for certain contributions owing to an occupational pension scheme. * The secondary tier consists of Crown debts comprising (i) the PAYE and employee national insurance deductions made by the company from employee salaries and wages not paid over to HMRC and (ii) the VAT the company has received on supplies it has made and which it has not paid over to HMRC. Note that these Crown debts used to be preferential until the EA 2002 reforms came into force when they were removed from the list of preferential debts. The Government has now restored their preferential status. * Tier 1 preferential debts must be paid in full before tier 2 preferential debts are paid.

Answer 315

the "prescribed part" fund into the IA 1986 to increase the chance that unsecured creditors would get paid something in a liquidation. The idea is that some money is reserved for the unsecured creditors and does not flow into the pocket of floating charge holders. The prescribed part fund is sometimes referred to as the "ring fenced" fund and applies to realisations from floating charges created on or after 15 September 2003. * The prescribed part fund is calculated by reference to a certain percentage (the ‘prescribed part’) of the company’s ‘net property’. This is set aside (ring-fenced) for distribution to the company’s unsecured creditors - s. 176A. ‘Net property’ means the proceeds of selling property other than that which is subject to a fixed charge, after deduction of the liquidator’s expenses and any preferential debts. *** The amount of the company’s net property that will be ring-fenced is 50% of the first £10,000 and 20% thereafter up to a maximum fund of £600,000 for floating charges created before 6 April 2020 and £800,000 for floating charges created on or after that date. This pot of money is reserved at this stage to be shared rateably among the unsecured creditors when they are paid **(ie at step 7 below). * It should be noted that for this purpose, a floating charge holder who suffers a shortfall on floating charge realisations does not share in the prescribed part fund, although the shortfall does constitute an unsecured claim against the company.

Answer 316

* All the unsecured creditors rank and abate equally. This is known as the “pari passu” rule.

Answer 317

* The shareholders of the company will rank last. However, their rights, as between themselves, will depend on the rights attributable to their particular class or classes of shares under the Articles of Association. · For example, preference shareholders may have preferential rights to a return of their capital on a winding up in priority to ordinary shareholders. * In most insolvent liquidations, the shareholders do not receive any return from their shares, since they are the last to be paid in the statutory order of priority and there is not usually enough assets out of which to pay the amounts owed to the creditors . * Having looked at the order of priority of payment the benefit of fixed charges is clear and also illustrated from the example below. Fixed charge holders have the right to receive back the amounts owned to them from the sale proceeds of the fixed charged assets before any other class of creditor (see Step 2 earlier) and do not share those proceeds with preferential creditors, floating charge holders or unsecured creditors.

Answer 318

bankruptcy and individual voluntary arrangements ('IVAs')

Answer 319

o Bankruptcy is a collective insolvency procedure enabling an orderly collection, sale and distribution of an insolvent individuals' assets for the benefit of all the bankrupt's creditors.

Answer 320

o It is an arrangement under which a debtor makes a proposal for a compromise of their liabilities with their creditors. It is a flexible procedure that can be tailored to a debtor’s circumstances. It usually requires the debtor to pay funds to the IVA supervisor out of their income (perhaps from the debtor’s business) or assets or a combination of both. The IVA Supervisor will then pay a dividend to creditors based on their determined claims against the debtor. o If approved by the requisite percentage of creditors (see below), the IVA binds the debtor and all of their creditors to the terms of the IVA. o A licensed insolvency practitioner must be appointed as Supervisor of the IVA. The Supervisor supervises the debtor’s implementation and compliance with the terms of the IVA. o An IVA can last any length of time, but three to five years is common in practice.

Answer 321

o 1.The debtor drafts a proposal for compromise of their liabilities and a statement of their affairs (e.g. full details of assets and liabilities) usually with the assistance of an insolvency practitioner who is known as a Nominee at this stage. o 2.The nominee submits a report to the court stating their opinion as to whether the debtor's proposal has a reasonable prospect of being approved and implemented and whether creditors should be asked to vote on it. o 3.A debtor can apply to the court for an interim order. If the court grants the order, it brings about a moratorium, freezing existing or proposed bankruptcy and other proceedings and legal process (including execution, landlord’s right of peaceable re-entry and/or distress for rent) against the debtor. A court order is needed for a creditor to exercise any right or remedy otherwise restricted by the moratorium. The interim order (and the moratorium) lasts 14 days, which the court can extend. o 4.In order for the proposal to become binding, it must be approved by creditors holding at least 75% (by value) of the total debt owed to the creditors voting on the proposal but if that approval is given, it will not be effective if more than half the of the total value of creditors who are not associates of the debtor vote against it.

Answer 322

* If approved, the IVA binds the debtor and all of their unsecured creditors. An IVA cannot bind a secured creditor or a preferential creditor without that creditor’s consent. * The Nominee becomes the Supervisor of the IVA and is responsible for its implementation. The Supervisor can apply to court for directions and must report to the court periodically. If the debtor fails to comply with the terms of the IVA, the supervisor can usually have the right under the terms of the IVA to petition for the debtor's bankruptcy. * At the end of the IVA, if the debtor has complied with the terms of the IVA such as making the necessary payments required, the creditors will have to write off any balance of their pre-IVA debts against the debtor.

Answer 323

· it is an alternative to bankruptcy and avoids the stigma and restrictions associated with bankruptcy; · it can bind all unsecured creditors; and · a moratorium is available if an interim order is made.

Answer 324

· it may last longer than a bankruptcy; · it cannot bind a secured creditor or preferential creditor without that creditor’s consent; and · it can be an expensive and time-consuming process and there is some uncertainty as to whether creditors will approve it.

Answer 325

A bankruptcy petition is usually brought by a creditor but may also be made by the debtor.

Answer 326

o A ground for the petition is that the debtor is unable/has no reasonable prospect to pay its petition debts. o The debt must be for a liquidated sum exceeding £5,000, generally unsecured, and the debtor must usually be domiciled or present in England and Wales.

Answer 327

o The only ground for this petition is that the debtor is unable to pay its debts must be for a liquidated sum exceeding £5,000. o The petition must be accompanied by a statement of affairs setting out the debtors' assets and liabilities. o The debtor is unable to pay its debts as evidenced by an unsatisfied statutory demand that has been outstanding for three weeks from the date of service of the statutory demand.

Answer 328

- a statutory demand that has neither been satisfied within three weeks from service of that demand, nor set aside by the court; or - an unsatisfied execution of a judgment or of another legal process.

Answer 329

* If a court is satisfied that the grounds for a petition and other requirements set out above have been met, the court has discretion to make a bankruptcy order.

Answer 330

* Upon the making of a bankruptcy order, the Official Receiver will become the first trustee in bankruptcy (the ‘Trustee’) unless the court orders otherwise. A majority of creditors can seek the appointment of another person as Trustee (who must be a licensed insolvency practitioner). If there are few assets in the bankruptcy estate, it may be difficult to persuade anyone else to act as Trustee as there will be insufficient funds to pay fees and expenses. On the making of a bankruptcy order, the bankrupt (whilst undischarged) is prohibited from acting as a director or being involved in the management of a company, obtaining credit of over £500 without disclosing the bankruptcy, giving gifts and practising in certain professions. They are also deprived of ownership of their property except for their reasonable domestic needs.

Answer 331

o The bankrupt’s estate (comprising all assets and rights of the bankrupt) vests in the Trustee immediately and automatically by operation of law upon the making of the bankruptcy order. This means that the bankrupt will have to give up possession or give access to their assets (including those which fall into the estate after the making of the bankruptcy order) to the Trustee. o The Trustee has wide statutory powers to sell or otherwise deal with the assets in the estate including the carrying on of the bankrupt’s business, selling the bankrupt's assets and granting security over them. o The Trustee will collect in the assets of the estate including those assets which may be available to swell the estate as a result of challenging certain prior undervalue or preferences transactions. The Trustee will sell the assets of the estate and must distribute the money in the estate in accordance with a statutory order of priority for bankruptcies. o Trustees, like liquidators, have the right to disclaim 'onerous property or contracts' so as to bring the bankrupt’s liability under them to an end. The most important example of onerous property is a lease of land/property. o The Trustee will ask creditors to 'prove' their claims against the bankrupt. This means creditors, if they want to claim a dividend from the bankrupt’s estate, must provide evidence to the Trustee to support their claims. The Trustee will then determine the amount of the creditor’s claim and a court can decide the matter if the creditor does not agree with the Trustee’s determination. o When proposing to pay a dividend to creditors, the Trustee must give notice to the creditors who have proved their debts, stating the amount of the sale proceeds received from a sale of the assets in the estate, any deductions that have been made from these proceeds and the amount of any dividend that they can expect to receive. The Trustee must pay dividends to creditors in accordance with a statutory order of priority which we will look at next. o The bankrupt’s estate (comprising all assets and rights of the bankrupt) vests in the Trustee immediately and automatically by operation of law upon the making of the bankruptcy order. This means that the bankrupt will have to give up possession or give access to their assets (including those which fall into the estate after the making of the bankruptcy order) to the Trustee. o The Trustee has wide statutory powers to sell or otherwise deal with the assets in the estate including the carrying on of the bankrupt’s business, selling the bankrupt's assets and granting security over them. o The Trustee will collect in the assets of the estate including those assets which may be available to swell the estate as a result of challenging certain prior undervalue or preferences transactions. The Trustee will sell the assets of the estate and must distribute the money in the estate in accordance with a statutory order of priority for bankruptcies. o Trustees, like liquidators, have the right to disclaim 'onerous property or contracts' so as to bring the bankrupt’s liability under them to an end. The most important example of onerous property is a lease of land/property. o The Trustee will ask creditors to 'prove' their claims against the bankrupt. This means creditors, if they want to claim a dividend from the bankrupt’s estate, must provide evidence to the Trustee to support their claims. The Trustee will then determine the amount of the creditor’s claim and a court can decide the matter if the creditor does not agree with the Trustee’s determination. o When proposing to pay a dividend to creditors, the Trustee must give notice to the creditors who have proved their debts, stating the amount of the sale proceeds received from a sale of the assets in the estate, any deductions that have been made from these proceeds and the amount of any dividend that they can expect to receive. The Trustee must pay dividends to creditors in accordance with a statutory order of priority which we will look at next.

Answer 332

o The bankruptcy order of priority differs from the order of priority in corporate insolvencies and is as follows:  1.secured creditors (but limited to the value of the security itself and ranking with ordinary unsecured creditors for any amount not recovered under the security);  2.expenses of the bankruptcy including the Trustee’s remuneration;  3.two tiers of preferential creditors (identical to the ones on a corporate winding up);  4.ordinary unsecured creditors;  5.statutory interest;  6.debts of a spouse (must be provable but they are postponed to other creditors); and  7.finally, any surplus is payable to the bankrupt.

Answer 333

o A bankrupt has a number of duties to the Trustee including a duty to provide information and assistance to the Trustee to enable the Trustee to carry out their functions. The bankrupt shall- o give to a trustee such information as to his affairs; o attend on the trustee at such times, and o do all such other things,  as the trustee may for the purposes of carrying out his functions reasonably require.” o It is a criminal offence for the bankrupt to fail to comply with their obligations under s 333 IA 1986 and they could face imprisonment for up to two years and unlimited fines. Also, the bankrupt runs the risk of having their automatic discharge suspended (see below).

Answer 334

o Generally, a bankrupt is automatically discharged from bankruptcy after a maximum period of one year. Discharge means that the bankrupt is released from most of the bankruptcy debts and the personal restrictions eg acting as a director, obtaining credit etc mentioned above. o The Official Receiver or Trustee may apply for an order suspending the automatic discharge if the bankrupt fails to comply with their obligations under IA 1986. o The bankrupt may be discharged in less than a year if the Official Receiver or Trustee files a notice stating that the bankruptcy does not require investigation or stating that they have concluded any such investigation within the one year period.

Answer 335

* Behaviour to be taken into account is listed in Schedule 4A IA86 and includes failure to keep records, entering into preferences or transactions at an undervalue, fraud and incurring a debt without reasonable expectation of being able to pay it. Generally, the application must be made within a year of the start of the bankruptcy. * A BRO will operate for a period of between two and 15 years. For the duration of the order, the bankrupt is unable to act as a director or obtain credit of more than £500 without disclosing that they are subject to a BRO. * Breach of a BRO is a criminal offence punishable by fine and/or imprisonment. * Instead of being subject to court process, a bankrupt can offer the Secretary of State a bankruptcy restriction undertaking (BRU) which, if accepted, will have the same effect as a BRO

Answer 336

o If a bankruptcy order is in place, a Trustee has the power to challenge voidable transactions and will do this with the aim of increasing the assets available to creditors. In doing so, the Trustee will have to balance the costs and risks of litigation with the chances of success in making recoveries for the bankruptcy estate. The principles for voidable transactions for individuals are similar to corporate insolvencies but sometimes involve different time periods and different sections of IA86.

Answer 337

 Transactions at an undervalue (s 339 IA86)  Preferences (s 340 IA86)  Transactions defrauding creditors (s 423 IA86)

Answer 338

· Transaction for an undervalue · Within 5 years preceding the day of presentation of bankruptcy petition · Individual insolvent at time / as a result (this is presumed with associates)

Answer 339

· Must be transaction for an undervalue · Need intention to defraud creditors or to put assets beyond their reach · No need for individual to be insolvent and no relevant time to consider

Answer 340

· Individual puts creditor in better position and influenced by desire to prefer · Within 6 months preceding the day of presentation of bankruptcy petition · Within 2 years preceding the presentation of bankruptcy petition if an associate and presumption of preference if with an associate · Individual insolvent at time / as a result

Answer 341

Automatically

Answer 342

The most common preferential debt is wages/ salaries of employees for work carried out in the four months immediately preceding the date of the winding up order, up to a maximum of £800 per employee. In addition, employees’ accrued holiday pay is a preferential debt.

Answer 343

As of the beginning of December 2020, HMRC became a secondary preferential creditor (ranking behind employees), but only in relation to taxes which companies collect on HMRC’s behalf, such as PAYE and VAT. It is not a preferential creditor in relation to other taxes which a company owes directly to HMRC, such as corporation tax. This change will have a huge impact on other creditors, as HMRC is often one of the largest creditors in insolvent liquidations.

Answer 344

Ring fencing is the statutory procedure brought into force in 2003 setting aside a portion of the available money for floating charge holders (where the security was created on or after 15 September 2003) for the benefit of unsecured creditors (not secured creditors). The amount that should be set aside is: * 50% of the first £10,000 of money received from the property which is subject to floating charges; and * 20% of the remaining money up to a limit of £800,000. Note that this limit was increased from £600,000 with effect from 6 April 2020. The previous limit of £600,000 still applies to any charges created before 6 April 2020, unless a floating charge created on or after 6 April 2020 ranks equally or in priority to the pre- April 2020 charge, in which case the limit of £800,000 will apply to both charge holders.

Answer 345

· No formality is required for the partnership to fall under the Partnership Act 1890

Answer 346

a relationship between persons carrying on a business in common with a view to making a profit

Answer 347

* A partnership is NOT a legal entity separate from the partners themselves.

Answer 348

* There must be at least two persons to form a partnership. The PA 1890 does not distinguish between actual and legal persons, so a company could be a partner.

Answer 349

* There does not have to be any intention on the part of the parties to be, or form, a partnership. A partnership arises if, on the facts, the criteria in s 1(1) PA 1890 are met. * Section 2 PA 1890 contains a list of rules for determining the existence of a partnership. The purpose of s 2 is to provide more detailed guidance in determining if the criteria in s 1(1) PA 1890 have been met. For example: · Evidence of profit sharing will be prima facie evidence of a partnership but not necessarily conclusive evidence (s 2(3) PA 1890). Case law provides that if there is an agreement to share losses as well as profits, this makes the existence of a partnership more likely. · If all individuals take part in decision making, this also makes it more likely that a partnership will be held to exist. · A loan of money by one party to another does not create a partnership. Case law has also held that if the person is not being ‘held out’ as a partner this makes the existence of a partnership less likely. | WHETHER A PARTNERSHIP EXISTS IS DETERMINED ON THE FACTS

Answer 350

* costs nothing to create a partnership, because absolutely no formality is required * * There are also no required formalities for running a partnership and no filing or disclosure requirements, in contrast to companies which are heavily regulated. Conducting business through a partnership therefore allows for a high degree of confidentiality regarding the business’s affairs.

Answer 351

* There is an overriding duty of good faith in a partnership. * The duty owed by the partners to one another is similar to that owed by a trustee to a beneficiary. These equitable principles are reflected in the following sections of the PA 1890: · Honest and full disclosure (s 28 PA 1890) · Unauthorised personal profit (s 29(1) PA 1890) · Conflict of duty and interest (s 30 PA 1890)

Answer 352

* Because a partnership has no separate legal personality from the partners, the partners are personally liable in relation to contracts which are binding on the firm. The PA 1890 contains provisions relating to the nature and extent of such liabilities. In some circumstances, non-partners can also become personally liable.

Answer 353

Contractual liability * Every partner in a firm is liable **jointly **with the other partners for all the debts and obligations of the firm incurred whilst they are a partner (s 9 PA 1890).

Answer 354

* Tortious liability * In tort the partners’ liability is **joint and several **

Answer 355

* Under s 17(1) a new partner will not automatically be liable in relation to any debts incurred by the partnership before they joined. * Under s 17(2) a partner will still be liable after they retire in respect of debts incurred by the partnership whilst they were a partner. In order to relieve a partner from an existing liability once they retire, a partnership may novate the relevant agreement; this must be with the consent of the creditor (s 17(3)).

Answer 356

If a partner leaves, a third party can treat all apparent partners of the firm (ie before the departure) as **jointly liable to pay any new debt incurred by the partnership UNLESS that third party has been notified of this change** either by: · **actual notice** (s 36(1) PA 1890) - for those who have had actual dealings with the partner before departure; or ·**constructive notice** by virtue of publication of the departure in the London Gazette (s 36(2) PA 1890) -for those who have not had actual dealings with the partner before departure. * However, a former partner will not be liable for debts to any third party who did not know them to be a partner before they left. No notice at all has to be given to such persons.

Answer 357

s 14 PA 1890 sets out circumstances where a non-partner may be personally liable on a partnership debt if they have held themselves out as a partner (or have knowingly allowed themselves to be so held out).

Answer 358

* The elements required for s 14 PA 1890 to have effect are: · a representation to a third party to the effect that a person is a partner, · the third party's action in response (‘giving credit to the firm’, eg by supplying goods or services to the firm), and · the third party's state of mind (‘believing (having faith in) the representation’). * It is important to appreciate that s 14 PA 1890 relates to the liability incurred by the NON-PARTNER, not the liability of the firm. The liability of the firm for the acts of a non-partner is established by applying the common law principles of agency.

Answer 359

whether or not a firm is bound by a particular contract will differ depending on whether the individual acting on the firm’s behalf is a partner or not.

Answer 360

* Section 5 PA 1890 introduces a special statutory rule of agency which applies only when the agent in question is a partner in the firm. * The common law of agency may also apply where s 5 is not relevant.

Answer 361

* The common law of agency will apply. * Section 5 PA 1890 does NOT apply. · Partners content with agent's act (whether partner or non-partner) * In many cases, an individual acting as a firm's agent (whether a partner or not) will simply have put into effect the wishes of the partnership as a whole. * If all the partners are happy for the firm to enter into the contract and have given actual, express or implied authority to bind the firm, then the firm will be bound. * In any event, if the partners are happy to be bound, the situation is not problematic even if the agent had no authority at the time the contract was made. * The partners are able to ratify (ie approve) the agent's act and adopt the contract, either expressly or simply by going ahead and performing it. · Partners not content with agent’s act * The situation is more complex where the other partners are not content with the agent’s act.

Answer 362

* Section 5 PA 1890 provides for the firm to be bound in certain circumstances, even where the other partners are not happy to be bound by the contract made by the agent. Since s 5 PA 1890 is intended to protect the third party to the contract, it is that third party's view of what is happening that counts. * Following s 5 PA 1890 a partner's unauthorised act will bind the firm if, viewed objectively: · the act is for carrying on businessof the kind carried on by the firm (ask, for example, ‘is this the kind of contract that one would expect to be entered into in the course of business of this kind?’); and · the act is for carrying on such a business in the usual way (ask, for example, ‘is this the kind of contract that a partner acting alone would usually make on the firm's behalf or is it a contract of the kind an outsider would expect all partners in a firm to sign individually?’). * The firm will not be bound, however, if: · the third party actually knew that the partner in question was not authorised to enter into the contract on behalf of the firm; or · the third party did not know or believe that the partner was a partner.

Answer 363

* A partner who binds their firm without actual authority may be liable to the other partners for breach of contract.

Answer 364

* Section 5 PA 1890 does not apply at all if the person entering the contract is not in fact a partner. In that case, the common law rules of agency establish whether or not the firm is bound as principal. * At common law, an agent who has no actual authority may still bind the firm if he has apparent authority to enter into a contract. Apparent (sometimes called ‘ostensible’) authority arises when the principal (here the firm) represents or permits a representation to be made to a third party that a person has authority to bind the firm. For example, if a firm employs somebody under the title ‘marketing manager’ that title confers on that person apparent authority to bind the firm on marketing decisions. Once the principal's representation has been made to, and relied upon by, the third party, the principal is bound by the actions of that person. * If the representation is that a particular person is a partner (when, in fact, they are not), then the firm is said to be ‘holding out’ that person as a partner. A person who has been held out as a partner has apparent authority to bind the firm in the same way as a real partner can. An example of holding out is in relation to an ex-partner, when the firm carries on using old letterhead (including that partner’s name) after they retire.

Answer 365

A person who has been held out as a partner has apparent authority to bind the firm in the same way as a real partner can.

Answer 366

arises when the principal (here the firm) represents or permits a representation to be made to a third party that a person has authority to bind the firm

Answer 367

* Each partner is liable to tax as an individual on their share of the income or gains of the partnership. This is described as tax transparency. * Even though a partnership is not a distinct legal entity and therefore does not itself pay tax, HMRC requires a partnership to make a single tax return of its profits which must be agreed with HMRC (as with sole traders, partnerships choose their own accounting period). * Partners also submit their own individual tax returns containing all income received from the partnership as well as other income receipts (including, for example, from savings, dividend and/or rental income). * Partners in a partnership are liable to pay both income tax and capital gains tax. The details are set out on the next slide.

Answer 368

· Each partner is personally liable for the income tax on their share of the partnership profits. · Unlike with other partnership liabilities where each partner is jointly and severally liable, a partner is not liable for the tax on other partners’ shares of partnership profits.

Answer 369

· Normal capital gains tax principles apply on disposal of a capital asset by a partnership. · Each partner is treated as owning a fractional share of the asset. On disposal by the partnership, each partner is treated as making a disposal of their share and will be taxed on this share of any gain, subject to the availability of any reliefs available to individuals. A partner’s fractional share shall be based upon the agreed profit sharing ratio (PSR) or, if there is no agreed PSR, then equally in accordance with s 24(1) PA 1890.

Answer 370

As a minimum, this will normally include provisions concerning the matters set out below: · Commencement and duration · Partnership name and place of business · Partnership property · Capital, profits and losses · Drawings / Salary · Accounts · Dissolution of the partnership · Duties, powers and restrictions on partners: · Work input and roles; any limits on the authority of partners · Partnership decision making · Incoming partners · Retirement/expulsion of existing partners · Non compete / other restrictions

Answer 371

 Although a partnership will commence when s 1(1) PA 1890 is satisfied, it is useful for the agreement to set out a date on which the partners agree that the particular rights and obligations contained in the agreement will commence. If the partners begin working together prior to the commencement date then the default provisions of PA 1890 will apply until the commencement date of the agreement.  The agreement may have a fixed term or may continue until terminated in accordance with its provisions.  If the agreement has a fixed term but the partners continue in business after the expiration of that term without entering into a new agreement, they are presumed to be partners on the same terms as before (s 27 PA 1890).

Answer 372

o Section 20 PA 1890 provides that all property brought into the partnership whether by purchase or otherwise, on account of the firm or for the purposes and in the course of the partnership business, is partnership property. o Section 21 PA 1890 provides that all property bought with money belonging to the firm/partnership is deemed to have been bought on account of the firm/partnership, unless the contrary intention is shown. o S44 says how you should share partnership property  Does it by reference to your income share  S24(1) says income is shared equally **each partner is deemed to own a share in the property belonging to the partnership**. (even in partnership agreement provision) | Better to put provision for this in partnership agreement

Answer 373

o The default provisions of PA 1890 provide, subject to any express or implied agreement between the partners, that all partners are entitled to share equally in the capital and profits of the business, and to contribute equally towards the losses of the business. This is the case even where the parties have contributed to the capital unequally although if the partners have contributed capital unequally there might be an implied agreement that they are entitled to withdraw their capital unequally. o This will not affect the capital profits being shared equally unless there is a specific agreement to that effect. o Often, the default provisions will not accord with the partners’ wishes therefore it is extremely important that there is an express provision in the agreement setting out a profit sharing ratio (‘PSR’).

Answer 374

o Partners are entitled to share equally in the capital and profits of the business, and to contribute equally towards the losses of the business.

Answer 375

o Partners own the business and may take ‘drawings’ of income profits. The partnership agreement should set out how much each partner may draw in any given period. In the absence of agreement, s 24(1) provides that all partners are entitled to share equally in income profits. o In some partnerships, the partners may intend that each receives a salary in addition to an income profit share. This must be expressly set out in the agreement as the default position is that there is no entitlement to salary.

Answer 376

o Without an agreement a partner is not entitled to a salary.

Answer 377

o Every partner may take part in the management of the partnership business.

Answer 378

o Under PA 1890, every partner may take part in the management of the partnership business (s 24(5)) but are not required to do so. The partnership agreement should therefore set out the requirements for each partner in terms of the work they do for the business. Commonly, the agreement will state that all partners must devote the whole of their time and attention to the business. o The roles of partners and any limits on their authority should also be clearly defined.

Answer 379

o The agreement should deal expressly with decision making and management. o All partnership decisions must be decided by a majority, other than the following which require unanimity: · Changes to the nature of the partnership business (s 24(8)); · Introducing a new partner (s 24(7)); · Varying the rights and duties of partners (s 19) . o Decisions arising during the ordinary course of the business are decided by a majority, except for any change to the nature of the partnership business.

Answer 380

o Under s 24(7) PA 1890, the unanimous consent of all partners is required for a new partner to join the partnership. o Whilst this may be what the partners themselves want, it is still advisable to include an express clause requiring written consent of all partners for a new partner to join the partnership, to avoid any doubt as to whether consent was in fact given. o No person may be introduced as a partner without the consent of all existing partners.

Answer 381

o Under PA 1890, a partner cannot be expelled by majority vote unless all of the partners have previously expressly agreed that a majority can do this.  The partners should therefore agree expulsion provisions in advance, otherwise it will be impossible to remove a partner without dissolving the partnership.

Answer 382

o If there is no partnership agreement or if the agreement is silent on retirement or termination, the effect of a partner leaving is that the partnership is dissolved (s 26 PA 1890). o In most cases this is a ‘technical dissolution’. This means that a new partnership is formed by the remaining partners who continue the business. o However, it is open to any of the partners to apply to court to have the old partnership wound up (ie sale of the assets for the repayment of the partnership debts and for the distribution of the assets or liabilities amongst the partners). o To prevent dissolution when a partner retires, the partnership agreement should state explicitly that the partnership will continue as between the remaining partners and should contain details of how a partner can leave (which may include a provision in the event of death) or be expelled without the partnership being wound up. This would usually include a mechanism for the remaining partners to buy out a departing partner's share and for calculation of the value of such share.

Answer 383

o Where no fixed term has been agreed for the duration of the partnership, the partnership will be dissolved by any partner leaving.

Answer 384

o It is common for a partnership agreement to contain an express clause preventing current partners from competing with the firm. This is implied by default under s 30 which states that if a partner, without the consent of the other partners, carries on any business of the same nature as and competing with that of the firm, they must account to the firm for all profits made by them in that business.

Answer 385

o The partners may wish to also put limitations on the powers of outgoing partners to compete with the partnership after leaving. There are no such default clauses in PA 1890. o Restrictions on outgoing partners can be provided for in the partnership agreement by using any of the following: · Non-compete clauses: prevent former partners competing with the business; · Non-solicit clauses: prevent former partners from soliciting business from the partnership’s clients; · Non-dealing clauses: prevent former partners from entering into contracts with clients, former clients or employees of the partnership. * These types of clauses are known as restraint of trade clauses and will only be enforceable if they are reasonable in terms of duration, geographical area and scope and are necessary for the protection of a legitimate business interest of the partnership.

Answer 386

· automatic dissolution (subject to contrary agreement) under: * expiry of fixed term (s 32(a)) * completion of specific venture (s 32(b)) * death or bankruptcy of any partner (s 33) * dissolution of partnership by notice from any partner (ss 26 and 32(c)). This applies where the partnership has no fixed duration; * dissolution of partnership if the partnership business becomes unlawful (s 34); * dissolution by the court as a last resort (s 35).

Answer 387

o Subject to any written partnership agreement, where a partnership is wound up, once all debts and liabilities have been paid, any money/assets left will be distributed so that each partner is paid back their original capital first (s 44(b)(3) PA 1890). o It is common for a partnership agreement to have a provision dealing with the proportion in which any surplus assets are to be shared out following dissolution. This is called the asset surplus ratio or ‘ASR’. o If there is no agreed ASR then s 44(b)(4) PA 1890 applies, and surplus assets are shared in accordance with the agreed profit share ratio (PSR). o If there is no PSR then the surplus assets are shared equally in accordance with s 24(1) PA 1890.

Answer 388

it has elements of both a company (legally it is a body corporate and is treated as a separate legal entity from its members: s 1(2) Limited Liability Partnerships Act 2000 (‘LLPA’)) and a partnership (it is treated as tax transparent).

Answer 389

an LLP has the flexibility of a partnership with the added advantage of limited liability for its members. Because an LLP is a body corporate, it has a legal personality which is separate to that of its members. As a result, it is liable for its own debts, and is able to contract with third parties.

Answer 390

o This is because, as stated, LLPs are tax transparent, so they allow a high level of participation in management by the members whilst giving the members the benefit of limited liability.

Answer 391

o Section 2(1)(a) LLPA states that two or more persons associated for carrying on a lawful business with a view to profit can incorporate an LLP. A ‘person’ in this context can be a company as well as an individual. The use of the word ‘business’ requires that there must be some commercial activity, so LLPs are not normally used by non-profit organisations as business vehicles. * Registration at Companies House o The subscribing members fill out a Form LL IN01, which is sent to Companies House with the relevant fee. The form must state, inter alia, the name of the LLP, its registered office’s address and which members, if not all of them, are to be designated members (s 2(2) LLPA). * Certificate of Incorporation o Once registered, the Registrar of Companies issues a certificate of incorporation as conclusive evidence that all legal requirements have been complied with. The name of the LLP will be entered on the index of company names and given a number.

Answer 392

o Once registered, LLPs are obliged to continue to file information with Companies House as follows: · change of name, · change of registered office, · changes in membership, · creation of a charge, · annual confirmation statement, and · accounts(under the Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008). o In addition to its obligations to file information at Companies House, an LLP must maintain certain in-house records, including registers of its members and of its ‘people with significant control’ (‘PSCs’ who are, broadly speaking, those with a more than 25% interest in the LLP or have significant influence or control over the LLP).

Answer 393

o The members of an LLP are those who subscribed to the incorporation document and those who became members at a later date by agreement with the existing members. Section 4(2) LLPA states that persons, not just individuals, can be members of an LLP – therefore corporate bodies may be members of an LLP. o An LLP must have at least two formally appointed members at all times. There is no limit on the maximum number of members an LLP can have. o At least two members of the LLP must be ‘designated members’. Their obligations include, amongst other things, signing the accounts on behalf of the members, making filings at Companies House and acting on behalf of the LLP if it is wound up. o Section 4(3) LLPA states that a member will cease to be a member of the LLP upon: · their death; · agreement with the other members of the LLP; · giving notice to the other members of the LLP; or * dissolution (if the member is a body corporate).

Answer 394

o An LLP has no Memorandum or Articles of Association. The LLPA and the 2001 Regulations do not lay down any particular management structure to be adopted, in contrast to companies. LLPs therefore have complete flexibility in terms of management. Therefore, it is necessary in practice to have an LLP or Members’ Agreement stating how these issues are to be dealt with by the LLP and its members, in a very similar way to how a partnership agreement is designed to operate. o The LLP Agreement is a private document which sets out the formal procedures and arrangements which the members have agreed to be the basis of the operation of their business.  Note that members of an LLP are not obliged to have a formal Members’ Agreement to regulate their relationship. o In the absence of any such agreement, the 2001 Regulations contain eleven default provisions in regulations 7 and 8. Note that any other gaps will not be filled by partnership law under PA 1890, since PA 1890 is disapplied with respect to LLPs by s 1(5) LLPA.

Answer 395

· Members share equally in capital and profits(Reg 7(1)); · An LLP must indemnify its members for payments made and personal liabilities incurred by them in the ordinary and proper conduct of the business of the LLP (Reg 7(2)); · Every member may take part in management (Reg 7(3)); · No member is entitled to remuneration for managing the LLP (Reg 7(4)); · No person can become a member or assign their membership without the consent of all existing members (Reg 7(5)); · Ordinary decision making may be by the majority of the members. Any proposed change to the nature of the business requires the consent of all the members (Reg 7(6)); · The books and records of the LLP must be available for inspection by the members at the registered office (Reg 7(7)); · Each member must give true accounts and full information of all things affecting the LLP to any member or his legal representative (Reg 7(8)); · If a member (without consent) carries on any business of the same nature as, and competing with, the LLP then they must account for and pay over to the LLP all profits made by them in the business (Reg 7(9)); · Every member has a duty to account for benefits derived from transactions with the LLP and its business or property (Reg 7(10)); · There is no implied power of expulsion of a member by the majority unless the members have expressly provided for such a power in a Members’ Agreement (Reg 8).

Answer 396

o If two individuals set up an LLP, each will be taxed as an individual, ie liable to income tax or capital gains tax on their share of the income or gains of the LLP. In other words, an LLP is ‘transparent’ for tax purposes – the LLP is not taxed, but the partners are. o Assets held by the LLP will be treated as being held by the members as partners for capital gains tax purposes. Accordingly, a disposal of an LLP asset, such as land, will be regarded by HMRC as a disposal by the members of the LLP while it is trading. o The LLPA gives relief from stamp duty where a partnership is incorporated as an LLP and assets of the partnership business are transferred to the LLP, subject to strict tax avoidance conditions. In some circumstances, stamp duty and/or SDLT is payable on the transfer of an interest in an LLP at the relevant rate. o As regards VAT, the LLP itself may register for VAT, not the members

Answer 397

* Corporate Characteristics: * Separate legal personality; * Limited liability for members, subject to the restrictions mentioned; * LLPs have to file accounts at Companies House on much the same basis as companies, leading to a loss of financial privacy (which is one of the main attractions of using a partnership structure); * LLPs, like companies, are capable of creating a floating charge over the assets of the LLP, unlike a partnership; and * Some provisions of company law (in particular the CA 2006) and corporate insolvency law (as contained in the Insolvency Act 1986 and the Company Directors Disqualification Act 1986) apply to LLPs in modified form. * Partnership Characteristics: * LLPs have no share capital or capital maintenance requirements; * No real distinction between members and the management board (unlike a company, in which the members/shareholders and board of directors have very distinct roles); * Members can agree amongst themselves how to share profits, management duties, how decisions are to be made, how new members are to be appointed and what retirement provisions shall apply; * The Members’ Agreement (if there is one) is like a private partnership agreement; * LLPs are tax transparent in the same way as a partnership; * The corporate insolvency regime also applies to LLPs but there is an important disadvantage for members of an LLP compared to those of a company. LLPs are subject to the ‘clawback’ rule, which means that in certain circumstances money taken out of the LLP by members up to two years before commencement of a winding up of the LLP can be clawed back into the pool of assets available to repay LLP’s creditors (s 214A IA).

Answer 398

Partnership Act 1890 his default contract will govern the relationship between the partners unless they have agreed any specific terms, which will usually override the provisions of the PA 1890. Note that any agreement between the parties does not have to be written: an oral agreement is just as valid as a written agreement, but a written partnership agreement is of course more desirable because it leaves less scope for disagreement. Agreements can also be implied by conduct, in circumstances where a partner has acted in a certain way over a period of time and the other partners have not objected.

Answer 399

* include ‘limited’, ‘Ltd’, ‘limited liability partnership’, ‘LLP’, ‘public limited company’ or ‘plc’; * be offensive; * be the same as an existing trademark; or * contain a ‘sensitive’ word or expression, or suggest a connection with government or local authorities, without permission.

Answer 400

Under the PA 1890, partners may take part in the management of the business, but they are not required to do so. This means that the partnership agreement should set out each partner’s working hours, or state that they must work full- time for the business, so that it is clear what is required of each partner. In the absence of such a provision, it might be difficult for the other partners to argue that one partner should be working more. A common clause in partnership agreements is to state that a partner must devote the whole of their time and attention to the business. It is also advisable to state that partners must not engage in any other business whilst they are a partner, so that they are not distracted by other commitments. Non- compete clauses are common, although one will be implied by default under the PA 1890 in the absence of express agreement The agreement should set out holiday entitlement, sickness and maternity and paternity provisions. Such matters are not included in the PA 1890, so there is no default position regarding these matters.

Answer 401

* changing the nature of the business (s 24 PA 1890); * introducing a new partner (s 24 PA 1890); and * changing the terms of the partnership agreement (s 19 PA 1890, and also the general contractual principle that contracts can only be varied with the consent of all the parties). All of these three decisions can only be made unanimously.

Answer 402

* when a partner retires (although the partnership agreement can provide that the other partners carry on in business, which is explained further below) (s 26); * on expiry of a fixed term (s 32); or * by the death or bankruptcy of any of the partners (s 33); or * if the partners give notice of dissolution to a partner who has (by order of the court) granted a charge over their share of the partnership property, for a debt owed by them alone and not the partnership as a whole (s 33).

Answer 403

* a partner becomes permanently incapable of performing their part of the partnership contract; * a partner’s conduct is calculated to be prejudicial to the business; * a partner wilfully or persistently breaches the partnership agreement; * the partnership can only be carried on at a loss; or * the court thinks that, for other reasons, it is just and equitable to order that the partnership be dissolved.

Answer 404

t means that, unless the partners all agree otherwise, the partnership must end, all the assets must be sold (or the partnership sold as a going concern), and the outgoing partner has to receive their share. In fact, an outgoing partner can insist on the business being sold under s 39 PA 1890, so the other partners do not necessarily have the option of continuing in business and just paying the outgoing partner for their share. For this reason, it is important to ensure that the partnership agreement states that in the event that a partner leaves, the remaining partners will continue in partnership (partial dissolution).

Answer 405

* First of all, creditors of the firm must be paid in full. If there is a shortfall, the partners must pay the balance from their private assets. They will share the losses in accordance with their partnership agreement. * Secondly, partners who have lent money to the firm must be repaid the amount outstanding on the loan, including interest. * Thirdly, partners must be paid the share of the partnership’s capital to which they are entitled. * Lastly, any surplus is shared between the partners in accordance with the terms of their partnership agreement. All of the partners, unless they are bankrupt, have authority to act in winding up the business’s affairs (s 38 PA 1890). If any of the partners are bankrupt or deceased, the trustee in bankruptcy or personal representative can also make such an application.

Answer 406

* must be completely open with one another regarding any relevant information regarding the partnership; * must account to the firm for any private profits they have earned without the other partners’ consent from any transaction concerning the partnership; and * must not compete with the firm: this is classed as carrying on any business of the same nature as and competing with that of the firm. If the partner does so without the other partners’ consent, that partner must account for and pay over to the firm all profits made by them in that competing business.

Answer 407

* bear a share of any loss made by the business, in accordance with the terms of their partnership agreement; and * indemnify fellow partners who have borne more than their share of any liability or expense connected with the partnership.

Answer 408

1. the transaction is one which relates to business of the kind carried on by the firm; 2. the transaction is one for which a partner in such a firm would usually be expected to have the authority to act; 3. the other party to the transaction did not know that the partner did not have authority to act; and 4. the other party deals with a person whom they know or believe to be a partner.

Answer 409

Where a partner has acted with apparent authority, the firm will be liable to the third party under the contract. In addition, the partner who has made the firm liable by virtue of their apparent authority is liable to indemnify their fellow partners for any liability or loss which they incur, because the partner has breached their agreement with their partners by acting without actual authority.

Answer 410

In a novation agreement, a retiring partner will be released from an existing debt, by entering into a contract with the creditor and the other partners, and possibly an incoming partner. Under this contract of novation, the creditor will release the original partners from their liability under the contract and instead the firm as newly constituted will take over the liability. This is clearly advantageous to the retiring partner whilst disadvantageous to any incoming partner. An incoming partner will usually agree to this only as part of the package of terms on which they join the partnership.

Answer 411

Under s 36 PA 1890, anyone with whom the firm has dealt before must be given actual notice of the partner in question leaving. This means that they must be informed directly, rather than being notified by way of a notice in the newspaper or some other method of notification. If notice is not given, a person dealing with the firm is entitled to treat all apparent members of the firm as still being members. Anyone who has not had dealings with the firm before the partner in question left must also be notified of the partner’s retirement. This is done by placing a notice in the London Gazette (or the Edinburgh Gazette or Belfast Gazette for firms whose principal place of business is in Scotland or Northern Ireland rather than England and Wales). This notice in the Gazette acts as ‘notice to the whole world’ of the partner’s departure. If the reason for ceasing to be a partner is death or bankruptcy (rather than retirement or expulsion), no notice of the event is required. The estate of the deceased or bankrupt partner is not liable for partnership liabilities incurred after the death or bankruptcy.

Answer 412

* The claimant can sue the partner (or partners) with whom they made the contract because there is privity of contract between them. This will only be a problem for the partner if they acted without authority when they entered into the contract. * The claimant can sue anyone who was a partner at the time when the debt was incurred. That partner can then claim an indemnity from their partners (under s 24 PA 1890 or possibly under the partnership agreement) so that the partners share the liability between them. * The claimant can sue the firm (ie all of the partners), in the firm’s name. Anyone who was a partner at the time when the debt was incurred is jointly liable to satisfy the judgment (under ss 9 and 17 PA 1890 and the Civil Liability (Contribution) Act 1978).

Answer 413

Although a partnership is not a legal person in its own right, an insolvent partnership can be wound up as an unregistered company or may use the rescue procedures available to companies, such as a voluntary arrangement with creditors or an administration order of the court. The individual partners may be made bankrupt if an obligation is enforced against their personal assets and there is still not enough to meet the partners’ liabilities.

Answer 414

Partners may need to pay VAT, National Insurance and either income or corporation tax, depending on whether the partner is question is a company or an individual.

Answer 415

the third party can enforce the debt in the usual way. This may involve obtaining a charge over the partner’s property or properties, and then applying for an order for sale of those properties in order to satisfy the outstanding debt. Alternatively, the third party may seize assets belonging to the partner. If a partner cannot pay their fellow partners, the other partners have the same enforcement options as a third party. There may also be other consequences. For example, the partnership agreement may give the other partners the right to expel that partner.

Answer 416

An LLP must have at least two members on incorporation. There is also a requirement to have two designated members, who are responsible for filing documents at Companies House. If the LLP only has two members, then these two members will have to be designated members to fulfil the requirement for two designated members. Generally, the original two designated members will be the subscribers to the incorporation document, but they can cease to be designated members at a later date if that is what the members decide. Sometimes the members decide that all of the members of the LLP will be designated members. If at any time the number of members reduces to one, and this carries on for more than six months, that person is jointly and severally liable for any of the LLP’s debts incurred during the period from the six- month point onwards.

Answer 417

end ‘LLP’, ‘limited liability partnership’ or the Welsh equivalents. Unless the partnership’s name consists wholly of the names of all of the partners, there are similar restrictions on LLPs’ names to those that apply to companies (see 1.12.1), in particular the restrictions imposed by the Companies and Business Names (Miscellaneous Provisions) Regulations 2009 and the Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015. The LLP must have its name on the outside of its place of business and its stationery must state its name, place of registration and registration number (and the address of the registered office). Under the LLP Regulations 2001, an LLP can change its name at any time, with the consent of all of the members. Alternatively, the procedure for change of name can be set out in the partnership agreement.

Answer 418

If an LLP is insolvent, the company liquidation regime under the Insolvency Act 1986 applies to both the LLP and its members. This means that members may be liable for misfeasance, fraudulent trading or wrongful trading and may be required to contribute to the assets of the insolvent LLP. The Company Directors Disqualification Act 1986 applies to members of an LLP as well as to company directors, so, depending on their conduct, a member of an LLP could be disqualified from being a director or a member of an LLP.

Answer 419

Members also owe fiduciary duties to the LLP, as its agents. They include a duty of good faith, a duty to account for any money received on behalf of the LLP and a duty to the other members to render true accounts and full information on matters concerning the LLP.

Answer 420

Limited liability partnerships can own property and the LLP itself is the legal owner, rather than the individual members. They can also issue debentures and grant both fixed and floating charges, just like companies. This contrasts with general partnerships, which can only grant fixed charges. Limited liability partnerships must keep a register of charges, along with a copy of every charge requiring registration, at its registered office. The register should include all charges affecting the LLP’s property and floating charges. Any creditor or member of the LLP must be allowed to inspect the register without paying a fee. Limited liability partnerships are required to register charges with the Registrar of Companies, and which form to use depends on the nature of the charge.

Answer 421

Whether a new member can join an LLP, and the mechanism for agreeing to a new member joining, is governed by the LLP agreement. If a new member joins an LLP, the LLP must deliver a notice to the Registrar of Companies, notifying them of the new member, within 14 days of appointment. This can be done by filing form LL AP01 (for an individual member) or LL AP02 (for a corporate member) at Companies House. The form is very similar to the form notifying Companies House of a new director of a company. It requires the member to give both a service address, which can be the LLP’s place of business, and a residential address, along with full name, former names and date of birth. When a member leaves an LLP, the LLP is required to file form LL TM01 (for an individual member) or LL TM02 (for a corporate member) at Companies House within 14 day

Answer 422

provide a set of default rules, just as the PA 1890 does for general partnerships. Many of its provisions mirror the PA 1890, covering such matters as sharing in income and profits, decision- making, expulsion and non- competition. However, its default terms will not suit every partnership, so a written partnership agreement is always advisable.

Answer 423

members of the LLP share equally in the capital and profits of the LLP. Of course, members can enter into an agreement which varies this default position. There is no default provision regarding losses, because those are borne by the LLP itself, as with a company. All that members of an LLP risk financially is losing their capital contributions, and, if they have loaned any money to the LLP, not being repaid.

Answer 424

every member may take part in the management of the LLP. They also state that members are not entitled to remuneration for taking part in management. Of course, again, members can agree to depart from these rules. They are free to create whatever management structure they want. There is no LLP equivalent to the Model Articles provided for companies – members of an LLP have a blank slate as far as management structure and rules are concerned, and there is no distinction between owner (shareholder) and manager (director) as with companies. As with general partnerships, ordinary matters of the LLP can be decided by a majority of the members. Changing the nature of the business and changing the terms of the contract between the members can only be done by unanimous consent. The same practical considerations apply to LLPs as to general partnerships when members are considering whether to make more decisions ones which must be taken by unanimous consent: will it reduce financial risk? Will it make decision- making more cumbersome? Of course, members of LLPs do not have the constant worry of being personally liable for the LLP’s debts in quite the same way as partners in general partnerships, so tend not to be as preoccupied with personal financial risk.

Answer 425

Under the LLP Regulations 2001, members can leave the LLP by giving reasonable notice to the other members. Members cannot be expelled, so, if the members wish there to be a right of expulsion, this must be included in the LLP agreement. If the members wish the bankruptcy of one of their number to automatically cause termination of that person’s membership of the LLP, they must stipulate this in the LLP agreement. Legislation does not provide for this otherwise. When a member leaves an LLP, the LLP must notify Companies House on form LL TM01 within 14 days of the member leaving.

Answer 426

The obvious advantage of an LLP is the fact that its members have limited liability for the debts of the LLP. Additionally, they are able to grant fixed and floating charges over their assets, unlike general partnerships. They also benefit from having a great deal of leeway with regard to their management structure: they can decide how they wish to structure their organisation. Finally, they can appoint an administrator. The main disadvantages of an LLP are the administrative and accounting requirements. Limited liability partnerships must file accounts with the Registrar of Companies and must file other information, such as notice of termination of membership, with Companies House. These documents are then available for public inspection. Limited liability partnerships are also subject to potential clawback provisions on insolvency

Answer 427

* CA 1985 required companies to have two constitutional documents: the Articles of Association and the Memorandum. Under s 17 CA 2006 the memorandum no longer forms part of the company’s constitution - it is only required as part of the procedure to register a company at Companies House. The memorandum of a company incorporated under CA 2006 simply amounts to a declaration on the part of the company’s subscribers (the first members of the company) that they wish to form a company and agree to become members of that company (s 8 CA 2006).

Answer 428

The purpose of the Articles is to regulate the relationship between the shareholders, the directors and the company.

Answer 429

 Model Articles (MA) / Table A * There are prescribed MA for different types of company. If a new company does not register Articles at Companies House, s 20(1) CA 2006 provides that the relevant MA will constitute the company’s Articles in default. Note that there was a similar provision under the CA 1985. For companies incorporated under the CA 1985 the default Articles were known as Table A (which you may encounter in practice).  Amended MA * Not all of the provisions contained in the MA are suitable for all companies. Many companies therefore choose to adopt the MA as their Articles, but elect to exclude, or modify the effect of, some of its provisions in so far as the CA 2006 allows them to do so.  Tailor made Articles * A client may wish their solicitors to draft Articles which are tailor-made for the particular company concerned. This is a very time-consuming process and therefore costly. Most small companies will prefer to adopt MA, subject to certain amendments.

Answer 430

by special resolution to be valid, any alteration must be made bona fide in the interests of the company as a whole.

Answer 431

one which can only be amended or repealed if specific conditions are met, or if procedures more restrictive than a special resolution are complied with. Entrenched Articles can nevertheless always be amended by the agreement of all of the members, or by a court order

Answer 432

* The generally established rule is that the Articles evidence a contract between the company and its members in their capacity as members and with respect to their rights and obligations as members.

Answer 433

 the company’s memorandum; * First shares of the company (subscribers) declare they want to form a company in this and that they want to be members  Articles (if the company does not intend to use the Model Articles (MA) – so not always);  the fee, and * This is very little money  an application for registration (Form IN01) containing: * The company’s proposed name and registered office; * Whether the company is to be private or public; * Whether the company is to be limited by shares (or guarantee); * A statement of capital and initial shareholdings (s 10) (or if it is to be limited by guarantee, details must be given of the guarantee (s 11)); * A statement of the company’s proposed officers (s 12) and persons with significant control (s 790); and * A statement of compliance (s 13). o Saying all this information is true so the company’s house do not need to verify it  Once the Registrar of Companies has approved the application for incorporation of the company, the company is sent a certificate of incorporation authenticated by the Registrar’s official seal.  The certificate of incorporation sets out: * the name of the company. This may be changed at a later date; * the company’s registered number. The company’s registered number will never change and must therefore be used when drafting any legal agreements to which the company is a party to ensure that the company can be correctly identified following future changes to its name; and * the date of incorporation. o The company becomes a legal entity (s 16(3)) from the date on which the certificate of incorporation is issued by Companies House. The date of incorporation is set out in the certificate of incorporation (s 15 CA 2006).

Answer 434

 *Name – most shelf companies will have a name that has no connection with the client or its business (eg ABC 123 Ltd). It will therefore need to be changed to a name selected by the client. Under s 77(1) CA 2006 a company's name can be changed by a special resolution of the shareholders or by any other means provided by the company’s Articles (eg a decision of the directors by way of board resolution). Form NM01 is required to be filed at Companies House with the special resolution passed to change the name and the fee; * The new name will be effective once the Registrar of Companies issues a new certificate of incorporation.  Registered office - the client’s chosen address will need to be substituted for the first registered office in accordance with s 87(1) CA 2006. Form AD01 is required to be filed at Companies House.  Articles – it is common for a shelf company to have been incorporated with MA (though some firms and registration agents incorporate their shelf companies with a different form of Articles drafted in-house). You will need to consider whether the company’s existing Articles need to be amended, in accordance with s 21(1) CA 2006, to meet the specific requirements of your client. A company may alter its Articles by special resolution (SR). The amended Articles and SR need to be filed at Companies House.  Members, directors and the company secretary – representatives of the company registration agent or law firm will have become the first member(s) (subscriber(s)), director(s) and company secretary (if the company has one) of the company. New directors and company secretary are appointed by Board resolution then the old directors resign. It is therefore essential that: * the share(s) held by the subscriber(s) (the first members) is/are transferred using a stock transfer form. The client becomes the shareholder once it is entered on the register of members; * the client’s representatives are appointed as director(s) and the company secretary (if there is to be one). Forms AP01 (directors) and AP03 (secretary) are required to be filed at Companies House, and * the first director(s) and company secretary (if there was one) resign. Forms TM01 (directors) and TM02 (secretary) are required to be filed at Companies House. The order that appointments and resignations are made is very important; the company will always need at least one director to be CA 2006 compliant. o Liability for pre-incorporation contracts rests with the promoter under s 51 CA 2006, subject to any agreement to the contrary.

Answer 435

The name: * Must not be offensive (s 53(b) CA 2006); * Must end in limited/ltd (for a private limited company - s 59 CA 2006); * Must not be the ‘same as’ another on the index of company names (s 66 CA 2006); * Must obtain approval if it suggests a ‘connection with government or public authority’ (s 54 CA 2006) or contains other ‘sensitive words’ (s 55 CA 2006). Companies House publishes guidance on these names from time to time, so it is advisable to refer to these each time you advise a client.

Answer 436

Yes * Once a company has chosen its name and had it registered, it has an obligation to display it in certain prescribed locations

Answer 437

* A new company name becomes effective from the date on which the new certificate of incorporation on change of name is issued by the Registrar of Companies (s 81(1) CA 2006).

Answer 438

 Chairperson – The Board needs to decide whether to elect a chair and whether the Chairperson should have a casting vote in the event of a tied board resolution. MA 13 provides for this, but they may wish to amend the MA by special resolution (s21). The SR and amended Articles need to be filed at Companies House.  Accounting reference date – s 391(4) provides that the default accounting reference date will be the last day of the month in which the company was incorporated. Often companies will change this to align with their financial year. Form AA01 is required to be filed at Companies House.  Auditor – all companies must prepare annual accounts (s 394) and will usually therefore need to appoint an auditor usually by Board resolution if company has MA.  Tax registrations – the company will need to register for corporation tax, VAT and PAYE and National Insurance (if it has employees).  Shareholder agreement – this is a private contract between the shareholders. It is not required and not all companies have a shareholder agreement, but it may be useful. We will consider shareholder agreements in more detail later in this module.

Answer 439

o Section 51 CA 2006 seeks to protect third parties who believe they are entering into a contract with a company which is incorporated and registered by making pre-incorporation contracts enforceable as personal contracts against the persons purporting to act on the company's behalf (known as 'promoters').

Answer 440

 Passed by? Directors  Where? Board Meeting (or in writing)  What for? Day to day decisions  Voting threshold? Simple majority MA7(1) (or unanimity for written) – MORE THAN 50%  How counted? 1 vote/director

Answer 441

 Passed by? Shareholders  Where? General Meeting (or in writing)  What for? Decisions that CA06 or Co Articles say require OR  Voting threshold? Simple majority (s 282 CA 2006)  How counted? Show of hands: 1 vote/SH (GM only) Poll: 1 vote/share

Answer 442

 Passed by? Shareholders  Where? General Meeting (or in writing)  What for? Decisions that CA06 or Co Articles say require SR  Voting threshold? At least 75% (s 283 CA 2006) * 75% or more  How counted? Show of hands: 1 vote/SH (GM only) * Show of hands is default unless someone calls for a poll Poll: 1 vote/share

Answer 443

 At a meeting of the shareholders (referred to as a General Meeting (GM)), or * Company appoints a corporate representative to vote for them if they are not there s23  In writing (for private companies only under s 288 CA 2006).

Answer 444

o Under s 281 CA 2006 only private companies may pass a shareholders’ resolution by way of a written resolution. o Section 284(1) CA 2006 states that, where a company has a share capital, every member has one vote in respect of each share held by them when voting on a written resolution.

Answer 445

 written ordinary resolution - passed by a simple majority of the total voting rights of eligible members (s 282(2) CA 2006).  written special resolution: * must state it is a special resolution, and * passed by a majority of members representing not less than 75% of the total voting rights of eligible members (ss 283(2) and (3) CA 2006). o Note that there are two decisions that may not be passed as written resolutions (s 288(2), which are removal of a director under s 168, and removal of an auditor under s 510.

Answer 446

MA 9provides that any director may call a BM or require the company secretary (if the company has one) to do so at any time. Therefore, the process is fairly informal and, when acting for a company, it is important to consider what the usual practice is for its directors.

Answer 447

, the court held that reasonable notice of the BM was necessary, and that this would be whatever notice is usual for the directors to give. When a director calls a board meeting, they must give notice to the other directors.

Answer 448

Directors may not validly consider business unless a minimum number of directors entitled to vote are present at the time the meeting takes place. MA 11(2)requires a minimum of two directors to be present for the meeting to be quorate (unless the articles provide otherwise).  Can be more than two if the articles say it should be

Answer 449

: Board resolutions are passed by majority vote on a show of hands (MA 7(1)). Each director has one vote. The chair may have a casting vote to prevent deadlock (MA13 provides for this but it is possible for the company to amend this).

Answer 450

The Board will usually convene (ie call) a GM

Answer 451

For private companies, 14 clear days’ notice is required (s307(1) CA 2006)(subject to a shorter notice period – see later). In this context, the word ‘notice’ refers to a period of time (between the board’s act of convening a GM and its actually taking place).  Section 360(1) CA 2006 states that the clear-day rule applies to s 307(1) CA 2006, and in counting the days of the notice period, the day of the meeting and the day the notice is given are both excluded. Note: s 1147 CA 2006 provides that if the notice is posted or e-mailed, it is deemed to be served 48 hours after sending.  In order to convene the GM, the board must inform the shareholders of when (and where) it is taking place, by giving notice to the shareholders. In this context, the word ‘notice’ refers to a document inviting shareholders to attend the GM.  The directors must approve the form of the notice of the GM and then they must authorise its circulation to the shareholders. o Quorum: the quorum for a GM is generally two shareholders (s 318(2) CA 2006), although it is one shareholder for single member companies (s 318(1) CA 2006).  Unless articles say differently or it is a single member company

Answer 452

o The CA 2006 allows for GMs to be called on less than the usual amount (14 days clear days notice period) of short notice if sufficient members agree. Section 307(5) CA 2006 provides that, for a private company, a GM may be called on short notice if this is agreed to by:  a majority in number of the members who,  together hold shares with a nominal value of not less than 90% of the total nominal value of the shares which give the right to attend and vote at the GM.  This percentage may be increased to up to 95% by a provision in the company’s articles of association but there is no such provision in the MA.  Therefore, where companies have few shareholders, it is often possible for meetings to be held at short notice.

Answer 453

o Sections 288 - 300 CA 2006 contain the general provisions applying to written resolutions. Points to note are:  *A written shareholder resolution (WR) can be proposed by the directors or the members of a private company and is passed when the required majority of the eligible members signify their agreement to it. * The required majority will depend upon whether it is an ordinary or a special resolution that needs to be passed. * An eligible member is a member (shareholder) who would have been entitled to vote on the resolution on the circulation date of the WR. * If the company does not receive a sufficient number of responses to pass the WR, it will lapse. For a company with MA, the lapse date is 28 days beginning with the circulation date. A company can choose another period of time in its Articles if it so wishes. o Section 288(2) CA 2006 provides that resolutions to remove a director or auditor from office may not be passed by way of WRs (essentially to allow the director or auditor the time and the opportunity to mount a defence). o WRs must be recorded in the minute books of the company in the same way as the minutes of a GM.

Answer 454

* A BM is held to resolve to propose the use of the WR procedure and to approve the form of wording of the WR and to circulate the WR. The WR is then circulated to the shareholders (eligible members) with details of how to signify their agreement and when to respond by ie the lapse date. * There are two options to proceed:  If the shareholders are present (available immediately), the BM is adjourned. The approval of the WR takes place immediately following the adjournment of the BM and the shareholders vote on the resolutions set out in the WR by signing to signify their agreement, or not signing or abstaining (both of which constitute votes against the resolution); or  If the shareholders are present (available immediately), the BM is adjourned. The approval of the WR takes place immediately following the adjournment of the BM and the shareholders vote on the resolutions set out in the WR by signing to signify their agreement, or not signing or abstaining (both of which constitute votes against the resolution); or  The BM is then reconvened if the first option was used or a second BM is called if the second option was used. The board are informed as to how the shareholders voted and they authorise one of their number or the company secretary to take the relevant action and deal with the post-meeting matters. The PMMs will then be carried out.

Answer 455

o Essentially the PMMs break down into three categories:  Internal * Minutes of all meetings need to be kept for 10 years * Updating of statutory books eg register of members, directors, PSC register  Filing at Companies House * All special resolutions must be filed. Generally ordinary resolutions do not need to be filed (but you will encounter some exceptions such as the authority to allot shares under s551). * Amended Articles must be filed, along with any forms that the Companies House requires eg Change of Name form.  Record Keeping * You will come across various documents that need to be kept at the registered office, eg directors service contracts.

Answer 456

sole traders, partnerships and limited partnerships

Answer 457

A sole trader is someone who runs an unincorporated business on their own as a self- employed person. A business operated by a sole trader is the most common form of business medium in the UK. A sole trader can operate in any trade or profession and can be anything from a dog walker to an architect. Sometimes sole traders are referred to as sole proprietors. Professionals who operate as a sole trader, for example, solicitors, are known as sole practitioners. The term ‘sole trader’ will be used in this book to refer to all of these types of business- person. Operating as a sole trader does not mean that you work alone. A sole trader may have one or more employees, but the sole trader is the person who owns the business, benefits from the profits and bears any losses. Sole traders earn income from the money received from customers or clients and keep all the profit, once they have paid their expenses. They pay income tax as a self- employed person. A sole trader is personally liable for all of the debts of the business. This means that the sole trader’s business assets and personal assets are all treated the same for legal purposes. Imagine that a person operates a small café as a sole trader. If the business performs badly and the sole trader cannot pay the debts they owe to suppliers, the suppliers may take legal action against the sole trader. The defendant in such an action would be the sole trader. If the café business did not have enough money to pay the debt, the claimant could be paid from the sole trader’s personal bank account and other personal assets. If the sole trader were unable to pay off all of the debts, they could be made bankrupt. The idea that there is no limit to the sole trader’s liability is known as the concept of unlimited liability. When the sole trader retires or dies, the business ceases, altho

Answer 458

This means that the people who own and run the company are separate from the company itself. If somebody wishes to sue a company, the defendant will be the company itself, rather than the individuals who own and run it. The individuals who own the shares in the company will not usually be liable for its debts – their liability is limited to the amount they paid or agreed to pay for their shares.

Answer 459

A public limited company (‘plc’) is a company limited by shares which has complied with the requirements of the CA 2006 to enable it to be registered as a plc. Some of the biggest companies in the UK are public companies.

Answer 460

1. the constitution, which is the set of rules which govern the company, must state that it is a public company; 2. the words ‘public limited company’ or the abbreviation ‘plc’ (or the Welsh equivalent, for a Welsh company) must be included at the end of the company’s name; and 3. the company’s owners must invest a specified minimum amount of money for use by the company: the allotted share capital of the company must be at least the ‘authorised minimum’, currently £50,000 (ss 761 and 763 CA 2006). Each allotted share must also be paid up to at least a quarter of its nominal value, plus the whole of any premium on it (s 586 CA 2006).

Answer 461

The main advantages to being a public company are that they are more prestigious and, even more importantly, can raise money by offering shares to the public, unlike private companies, which are prohibited from doing so (s 755 CA 2006). Private companies can instead offer their shares to a person already connected with the company or certain other targeted individuals rather than to the public or a section of the public (s 756 CA 2006). Public companies can apply to join the stock market in the UK. Fewer than a quarter of UK public companies have joined the stock market. The main stock markets in the UK are the London Stock Exchange’s Main Market and the Alternative Investment Market, known as AIM. The stock markets allow companies to raise large sums of money by enabling investors to buy the company’s shares quickly and easily. It is not possible to start a company as a publicly traded company; this is only an option if the business reaches a certain size, reputation or level of growth. Generally, private companies are subject to less regulation than public companies because they do not offer shares to the public at large; instead, they raise finance either from people who already know the company or specialist investors who understand the risks involved. Publicly traded companies are more regulated than unlisted public companies and private companies to protect the public, who can easily invest in a company which is listed on the stock market and are at risk if the company does not perform well financially. Unlisted companies can also offer shares to the public, but because their shares are not listed, it is harder for unlisted public companies to find buyers.

Answer 462

To do this, they must pass a special resolution approving the re- registration of the company (s90(1)(a) CA 2006), altering the company’s name so that it is in a form suitable for a public company (adding public company, plc or the Welsh equivalents) and altering the articles so that they are in a form suitable for a public company. At the time the shareholders pass the special resolution, the company must have satisfied the share capital requirements The applicant must file at Companies House: * the special resolution; * an application for re- registration on Form RR01, which includes a statement of compliance; * the fee for re- registration; * the revised articles (s 94(2)(b) CA 2006); * a balance sheet and a written statement from the company’s auditors, and a valuation report on any shares which have been allotted for non- cash consideration between the date of the balance sheet and the passing of the special resolution.

Answer 463

he shelf company is a company which has already been set up, usually with two directors and two shareholders, each of whom owns one ordinary £1 share, which is formed and then left ‘on the shelf’ at the law firm until such time as a client needs a company quickly. This could be part- way through a transaction, and using an existing shelf company will be cheaper but, more importantly, quicker than even the Companies House same- day registration service. The directors and initial subscribers of the shelf company will be employees of the law firm.

Answer 464

The resolution to remove a director. The resolution to remove an auditor before their term of service has expired.

Answer 465

* affixing its seal; or * by the signatures of: ∘ two authorised signatories (a director or company secretary); or ∘ a director of the company in the presence of a witness who attests the signature. Finally, the document must be delivered as a deed, which means that it must be clear on the face of it that it is intended to be a deed.

Answer 466

This relief allows the company to transfer certain losses and expenses to another company within the same qualifying group. The transferee will then use the loss or expense to reduce its taxable profit. Both companies must fit the definition of a group in order for this relief to be used.

Answer 467

One company must be the 75% subsidiary of the other, or both companies must be 75% subsidiaries of a third company. The test for being a 75% subsidiary essentially means that the holding company must own, directly or indirectly, 75% or more of the subsidiary’s ordinary shares.

Answer 468

Once it has been established that two companies are in the same group, one company (the transferor) can surrender certain items, including trading losses and management expenses, to the other company (the transferee). The loss or expense must have been incurred in an accounting period that overlaps with the accounting period of the transferee (who will be using the loss or expense from the other company to reduce its profits in that accounting period). There are some restrictions on the application of the relief when the transferor has other profits, or the transferee has losses of its own. In addition, group relief does not apply to capital losses, only income losses.

Answer 469

For this relief, the group consists of a company, its direct 75% subsidiaries and the direct 75% subsidiaries of those subsidiaries, and so on. All of the subsidiaries in the group must be effective 51% subsidiaries of the principal company. This means that the principal company must be beneficially entitled to more than 50% of the available profits and assets of the subsidiary. The group is only permitted to have one principal company.

Answer 470

Once it has been established that the two companies are within a group for chargeable gains purposes, one of the companies can transfer a chargeable asset to the other on a tax neutral basis. This means that the disposal is treated as giving rise to neither a gain nor a loss by the transferor. The transferee can then use the loss to reduce its own chargeable gains, so, as a group, the companies will pay less tax overall.

Answer 471

When a company is in a group for chargeable gains purposes and it disposes of a chargeable asset outside the group, it can roll over its gain into qualifying assets that it acquires (provided it satisfies the criteria for rollover relief – see 11.2.2.3). As an alternative, it can roll over its gain into qualifying assets acquired by another company in the same group. Group relief under chargeable gains provisions are subject to certain anti- avoidance provisions. These are designed to stop companies using the rules to their benefit when they join or leave a group. These provisions are outside the scope of this book.

Answer 472

group of companies may be able to register for VAT as a group under a single registration.

Answer 473

When a company sells shares back to the company in which the shares are held, it must work out how any profit on the sale will be treated in its corporation tax calculation. If the buyback satisfies the CGT rules (the test for which is set out at 10.17), the profit will be taxed as part of the selling company’s chargeable gains. If not, it will be taxed as income.

Answer 474

A company must inform HMRC in writing of the beginning of its first accounting period, and must do so within three months of the start of that accounting period. After that, every year HMRC will issue a notice to the company requiring it to deliver a self- assessment corporation tax return.

Answer 475

The deadline for filing the self- assessment return with HMRC is 12 months from the end of the relevant accounting period. For most companies, corporation tax is payable within nine months and one day from the end of the relevant accounting period. This means that the company is required to pay corporation tax to HMRC before it is required to file its tax return. Therefore companies will make a payment based on their anticipated corporation tax liability for the period, and will make a balancing payment (or receive a rebate) once the final figure for corporation tax has been established. Large companies, meaning those with annual taxable profits of £1,500,000 or more, usually (depending on the company’s overall corporation tax liability) have to pay tax in four instalments on the following dates: 1. Six months and 13 days after the start of the accounting period; 2. Three months from the first instalment due date; 3. Three months from the second instalment due date; and 4. Three months and 14 days after the end of the accounting period. Very large companies, which means those with annual taxable profits of over £20,000,000, have to pay the tax in four instalments during the accounting period. The due dates are: 1. Two months and 13 days after the start of the accounting period; 2. Three months from the first instalment due date; 3. Three months from the second instalment due date; and 4. Three months from the third instalment due date.

Answer 476

* The share capital account tells the reader the aggregate amount that has been 'called up' (ie the amount of the nominal value of its shares that the company has required its shareholders to pay) on each class of issued shares, not including any premium. This called up value may, or may not, be the same as the aggregate of the nominal value of the issued shares, for example, if they are not fully paid. It is relatively rare to encounter shares which are not fully paid up.

Answer 477

* Reserves can be described as the capital of the company in excess of the called up value of the issued share capital.

Answer 478

· capital reserves (eg share premium account, revaluation reserve, capital redemption reserve), discussed later in this element; and · revenue reserves (eg retained earnings), * Broadly speaking, assets representing the capital reserves cannot be distributed by way of dividend or other payment to shareholders. However, revenue reserves are distributable reserves and therefore, assets representing such reserves can be distributed to shareholders in the form of dividends.

Answer 479

* The share premium account represents the difference between the nominal value of the shares and the amount that the shareholders actually paid for the shares ie the subscription price (if greater). * The share premium account is a capital reserve. Assets representing it therefore cannot be distributed to shareholders, except in exceptional circumstances such as a bonus issue

Answer 480

* A revaluation reserve is created when a company's directors, as a matter of accounting policy, wish to show more up to date values of non-current assets in the accounts. * The increase in the value of the asset in the Balance Sheet causes the figure for Net Assets to rise correspondingly ie in simple terms, the top half of the Balance Sheet has increased. It is therefore necessary to make a corresponding change to the bottom half of the Balance Sheet. This is achieved by creating or increasing an existing revaluation reserve by the same value. * The revaluation reserve represents a notional profit to the company from the rise in value of the asset. This profit is, however, unrealised until the asset is sold, and as such it is a capital reserve and is not distributable as a dividend until the company sells the asset and realises the profit (s 830(2) CA 2006). * Any subsequent reduction in a re-valued asset's value can be set off against the revaluation reserve.

Answer 481

'statement of equity' (or 'statement of changes in equity') because they are transactions between the company and its shareholders.

Answer 482

* The 'retained earnings' is the reserve account for retained profits. * The retained earnings represent profits after tax earned by the company over its history and not distributed by way of dividend or appropriated to another reserve. It generally increases from year to year as most companies do not distribute all of their profits.

Answer 483

* Dividends are paid or payable out of profits generated in the current or previous accounting periods. Any company can make a distribution (eg a dividend) provided that it has 'profits available for the purpose' (s 830(1) CA 2006). It is only after the financial statements have been completed that the profits generated in a given accounting period can finally be determined. * In ALCIE terminology, dividends are recorded in a capital account as they are transactions between the business and its owner(s). For this reason, dividends do not belong on a Profit and Loss account. When a company declares a dividend, this will show up in the SoCiE

Answer 484

* There are two types of dividend that can be paid on ordinary shares; a final or an interim dividend. Both are calculated in exactly the same way, the only difference between the two being that: · 1.The final dividend is declared after the year end and paid some time thereafter · 2.The interim dividend is paid during, and in respect of, the current accounting period

Answer 485

* The size of the final dividend is declared by the company's directors in the Directors' Report, and approved by the company's shareholders by ordinary resolution, typically passed at the Annual GM if the company has one. * If the directors have recommended a final dividend, but the shareholders have not yet approved it, the dividend is called a proposed dividend. A proposed dividend does not constitute a debt enforceable by the relevant shareholders until it is approved ie declared by an ordinary resolution of the shareholders. Therefore, any final dividend which is proposed but not been approved will not appear in the accounts of that accounting period.

Answer 486

* A final dividend that has been approved by the shareholders is called a declared dividend. * A declared dividend constitutes a debt of the company enforceable by the relevant shareholders. A declared dividend will be taken into account in the SoCiE, as a deduction in calculating the Retained Earnings (profit and loss carried forward) which will appear in the bottom half of the Balance Sheet (see X Co Limited). * If the declared dividend has not yet been paid to shareholders by the time the accounts for that year have been prepared, it will appear in the Balance Sheet at the end of the year in which it was declared (as part of 'current liabilities'). It will also be taken into account in the SoCiE at that year-end. * A declared dividend which has been paid to shareholders before that year end will only be taken into account in the SoCiE.

Answer 487

* The articles of a company normally give the directors the power to decide to pay interim dividends (eg Model Article 30). Interim dividends can therefore be paid without the need for an ordinary resolution of the shareholders. Any board resolution to pay an interim dividend may be rescinded before the interim dividend is paid, so an unpaid interim dividend is not a debt that the shareholders are legally entitled to sue upon. * For this reason, the accounting treatment of interim dividends is different to the treatment of final dividends. Interim dividends will only be reflected in a company's accounts if they have actually been paid. When an interim dividend has been paid in any year the amount of the dividend will have been deducted from the assets, ie cash and cash equivalents, and will be shown as an item on the trial balance. A dividend is an allocation of profit and not an expense of the company so it will not be shown in the Profit and Loss Account. The interim dividend will be taken into account in the SoCiE (in this respect, interim dividends are treated the same as declared (and paid) dividends). * Any profits after tax not paid to shareholders as dividends are retained in the company.

Answer 488

* Preference dividends are usually paid in two instalments each year. Because of the nature of preference shares, the amount of the dividend will already be known each year.

Answer 489

* A 'bonus issue' of shares is also known as a 'capitalisation issue' or 'scrip issue'. * A company may decide to convert some of its reserves into share capital by issuing fully paid shares to existing shareholders on a pro rata basis for no consideration; in other words, shareholders do not have to pay for the bonus shares. 'Pro rata' means that the proportion of shares held by each shareholder pre- and post-bonus issue will not change, and therefore the proportions of voting rights will also remain the same. * Shares that are issued pro rata are often expressed by way of a ratio, ie x:y, where x is the amount of shares issued to the shareholder for every amount of shares (y) they currently hold. * This process does not raise any money for the company, but rather the company will use its reserves to fund the issue. A company may use its retained earnings or its share premium account to fund a bonus issue (s 610(3) CA 2006). * The assets and liabilities of the company are unchanged after the bonus issue.

Answer 490

o A lender will wish to ensure that they are protected as far as possible from the possibility that the borrowing company may be unable to repay the loan. A key method of protection is for the lender to take security over the assets of the borrowing company.  A lender CAN protect themselves

Answer 491

o A loan facility is an agreement between a borrower and a lender which gives the borrower the right to borrow money on the terms set out in the agreement.

Answer 492

* Overdraft: this is an on-demand facility, which means that the bank can call for all of the money owed to it at any point in time and demand that it is repaid immediately. This makes overdrafts unsuitable as a long-term borrowing facility. Interest is paid to the bank on the amount that the customer is ‘overdrawn’. * Term loan: this is a loan of money for a fixed period of time, repayable on a certain date. The lender cannot demand early repayment unless the borrower is in breach of the agreement. The lender will receive interest on the loan throughout the period. Term loans which are repayable in a single lump sum at the end of the agreement are referred to as having a ‘bullet repayment’. Alternatively, the loan may be repayable in instalments, in which case it is referred to as ‘amortising’. * Revolving credit facility: this is a loan of money for a specified period of time, but unlike a term loan, the borrower can repeatedly borrow and re-pay loans up to the agreed maximum overall amount when it chooses. This helps the borrower keep interest payments down, by borrowing only when it needs funds and repaying loans when it has available cash. It therefore combines some of the features of overdrafts and term loans.

Answer 493

o Debt securities have similarities to equity securities as they are a means by which the company receives money from external sources. In return for finance provided by an investor, the company issues a security acknowledging the investor's rights. The security is a piece of paper acknowledging the debt, which can be kept or sold onto another investor. At the maturity date of the security, the company pays the value of the security back to the holder. o A classic example is a bond. Here the issuer (the company) promises to pay the value of the bond to the holder of that bond at maturity. The company also pays interest at particular periods, usually biannually. o Bonds are issued with a view to being traded. The market on which bonds may be traded is known as the capital market. Whoever holds the bond on maturity will receive the value of the bond back from the issuer. Private companies can only issue bonds to targeted investors and not to the public indiscriminately. To do otherwise risks contravention of s 755 CA 2006.

Answer 494

o Convertible bonds Convertible bonds are bonds which can be converted into shares in the issuer. On conversion, the issuer issues shares to the bondholder in return for its agreement to give up its right to receive interest and repayment of the principal amount invested. Note that a convertible bond has the characteristics of both debt and equity, but not at the same time. It starts off as a debt security but later on, if the investor so elects (in accordance with the terms of the bond issue) the bond is swapped for shares. o Preference shares A preference share is wholly equity, but it is often called a hybrid because it has elements that make it look similar to debt. The holder of a preference share commonly has no voting rights, and will usually get a definite amount of dividend ahead of other shareholders (making it look similar to interest). If the preference share has a fixed maturity date on which the company must redeem or purchase the share and/or such preference dividend is fixed, then the preference share actually looks more like debt. However, if the preference share does not have such a fixed maturity date and/or the preference dividend will only be paid if the company declares a dividend (unlike interest, which has to be paid), then this share is more akin to traditional equity.

Answer 495

o Term sheet  This is a statement of the key terms of the transaction (eg loan amount, interest rate, fees to be paid, key representations, undertakings and events of default to be included in the loan agreement/bond terms and conditions) agreed by the lender and borrower. The term sheet is equivalent to heads of terms in other transactions. It is not intended to be a legally binding document, rather a statement of the understanding on which the parties agree to enter into the transaction. o Loan agreement  The loan agreement sets out the main commercial terms of the loan such as amount of interest, dates on which interest will be paid, the date(s) on which principal needs to be repaid and any fees due. It will also include most of the other information from the term sheet but in much more detail. The loan agreement is one of the most heavily negotiated documents in a debt finance transaction. o Security document  If a loan is secured, a separate security document will be negotiated and entered into. o Debentures  The word debenture has 2 separate meanings:  Under s738 "debenture" covers any form of debt security issued by a company, including debenture stock, bonds and any other securities of a company, whether or not constituting a charge on the assets of the company.  A debenture is a type of security document and one of the most commonly used in secured loan transactions. It is in this context that the term is generally used. The debenture is a separate document from the loan agreement. The loan agreement sets out the terms of the loan, and the debenture sets out the details of the security. The debenture is sent to Companies House for registration purposes.

Answer 496

o Representations  Representations, usually referred to as representations and warranties, are statements of fact as to legal and commercial matters made on signing of the loan agreement and repeated periodically during the life of the loan. o Undertakings  Undertakings (or covenants) are promises to do (or not do) something, or to procure that something is done (or not done). o Event of Default  Representations and undertakings are important clauses. Breach of either gives the bank contractual remedies where the breach constitutes an Event of Default. The Events of Default clause is vital in terms of giving the bank the power to call in its money early if the borrower shows signs of becoming an enhanced credit risk.

Answer 497

o ‘Security’, in this context, means temporary ownership, possession or other proprietary interest in an asset to ensure that a debt owed is repaid (ie collateral for a debt).  Similar to how a mortgage works in property o The main benefit of taking security is to protect the creditor in the event that the borrower enters into a formal insolvency procedure. It is possible to improve the priority of a debt by taking security for it. It should not normally be necessary to enforce security if the borrower is still able to pay, although in some circumstances enforcing security may be a simpler way of obtaining repayment than suing the borrower.

Answer 498

o Pledge o Lien o Mortgage o Charge

Answer 499

the security provider (usually the borrower or occasionally another company in the borrower’s group) gives possession of the asset to the creditor until the debt is paid back. Pawning a watch or an item of jewellery is a form of pledge.  Best type of security  HOWEVER Not the type of security that a bank would be a awarded – not practical in commercial lending

Answer 500

with a lien, the creditor retains possession of the asset until the debt is paid back.

Answer 501

 With a mortgage, the security provider retains possession of the asset but transfers ownership to the creditor. This transfer is subject to the security provider’s right to require the creditor to transfer the asset back to it when the debt is repaid. This right is known as the ‘equity of redemption’. A type of mortgage (known as a charge by way of legal mortgage) is usually taken over land (although, unusually, ownership will remain vested in the security provider in this case).  Charge by way of legal mortgage is only the only to make a fixed charge on property!!!!

Answer 502

 As with a mortgage, the security provider retains possession of the asset. However, rather than transferring ownership, a charge simply involves the creation of an equitable proprietary interest in the asset in favour of the creditor.  As well as this equitable proprietary interest, the charging document will give the lender certain contractual rights over the asset – for example to appoint a receiver or administrator to take possession of it and sell it (or, exceptionally, to take possession of it itself to sell), if the debt is not paid back when it should be.  There are two types of charge: fixed charges and floating charges. From a creditor’s perspective, fixed charges are generally a better form of security, but not all assets are suitable for charging by way of fixed charge.

Answer 503

o A fixed charge is normally taken over assets such as machinery and vehicles. The key element of a fixed charge is that the creditor can control what the security provider can do with the fixed charge assets. This is usually done by the security provider undertaking not to dispose of, or create further charges over, the charged assets without the creditor’s consent. Note that ‘control’ in this context means the borrower can generally still use the asset in the ordinary course of business but is restricted from disposing or charging it.  Usually on permanent assets  Can’t sell, charge or mortgage the asset without the seller’s consent but the bank has the power to preserve the value of the asset o If the charge becomes enforceable, the creditor will have the ability to appoint a receiver of that asset or to exercise a power of sale of the asset.

Answer 504

o It is not always practical for a security provider to undertake not to dispose of its assets, eg a trading company needs to be able to dispose freely of its stock (ie the products it sells).  Usually on assets thar fluctuate through the business o In that case, a floating charge may be appropriate. A floating charge ‘floats’ over the whole of a class of circulating assets. Whatever assets in that class happen to be owned by the security provider at any given time are subject to the floating charge, and the security provider is free to dispose of the assets as it wishes until ‘crystallisation’. o Crystallisation means that the floating charge stops floating and fixes to the assets in the relevant class which are owned by the security provider at the time of crystallisation. The creditor thus acquires control of those assets and to this extent a crystallised floating charge is like a fixed charge. Crystallisation may occur by operation of law or may be triggered by certain events as contractually agreed between the creditor and security provider. Crystallisation will usually occur when the borrower has breached certain significant terms of the loan agreement (including by reason of its insolvency).

Answer 505

* As the security provider has freedom to dispose of the assets in the ordinary course of business, the creditor will not be sure of the value of the secured assets – they might all have been sold before crystallisation occurs. * There is a statutory order of priority of payment of creditors if a company is wound up. A floating charge generally ranks below a fixed charge (and note that crystallisation does not change that) and below preferential creditors when the company's assets are realised (ie sold) and the proceeds of realisation (ie the sale) applied to creditors on the winding-up of the company. However, if the floating charge document contained a term prohibiting the creation of a later fixed charge (a ‘negative pledge’ clause) but the company nevertheless created a later fixed charge, the floating charge will have priority if the later fixed charge holder had notice of this restriction. * Floating charges created on or after 15 September 2003 are subject to a part of the proceeds of the assets being set aside. This is known as the ‘prescribed part fund’ for unsecured creditors. * Floating charges are capable of being avoided under s 245 Insolvency Act 1986 which is looked at further in one of the later insolvency topics on voidable transactions. * An administrator is free to deal with floating charge assets in their control without reference to the charge holder or the court and to pay their remuneration and expenses out of the proceeds of those assets.

Answer 506

o Strictly speaking, guarantees are not security, as guarantees do not give rights in assets. However, as their commercial effect is similar to security, security and guarantees tend to be treated together. A guarantee for a loan means an agreement that the guarantor will pay the borrower’s debt if the borrower fails to do so. Guarantees can come from companies or individuals (such as directors).

Answer 507

o Security created by BPL needs to be registered with Companies House o By any person interested in the charge (eg the Bank)  within 21 days beginning with the day after the day on which the charge is created o Must deliver to Companies House: statement of particulars set out on Form MR01, a certified copy of the charge and the relevant fee.

Answer 508

 the charge is void against a liquidator, administrator and any creditor of the company; and  the debt becomes immediately payable. o a company must keep available for inspection a copy of every charge and a copy of every instrument that amends or varies any charge

Answer 509

o Most security created by a company needs to be registered with Companies House (like a charges register in property).

Answer 510

within 21 days beginning with the day after the day on which the charge is created (s 859A(4) CA 2006): · a section 859D statement of particulars set out on Form MR01 detailing: * the company creating the charge, * the date of creation of the charge, * the persons entitled to the charge, and * a short description of any land, ships, aircraft or intellectual property registered (or required to be registered) in the UK which is subject to a fixed charge; · a certified copy of the charge (s 859A(3) CA 2006); and · the relevant fee.

Answer 511

o The Registrar allocates to the charge a unique reference code and includes it on the register with the certified copy of the charge (s 859I(2) CA 2006). The Registrar must issue a signed/authenticated ‘certificate of registration’ (s 859I(3),(4) and (5) CA 2006) which is conclusive evidence that the charge has been correctly registered.

Answer 512

o Section 859A(2) CA 2006 provides that the s 859D statement of particulars may be delivered either by the company that created the charge or any person interested in that charge (eg the lender). In practice it will usually be the lender’s solicitors who will complete the registration formalities, as it is the lender who has most to lose in the event of non-registration.

Answer 513

o Under s 859H CA 2006, if the charge is not registered at all, or is not registered within the 21-day period above: · the charge is void against a liquidator, administrator, and any creditor of the company; and * VOID IN A LIQUIDATION – NOT JUST VOID · the debt becomes immediately payable. o As security is taken as protection against the effects of insolvency, the fact that the charge is not valid as against a liquidator or administrator means that the security will effectively be worthless if not registered.

Answer 514

o Under s 859P CA 2006, a company must keep available for inspection a copy of every charge and a copy of every instrument that amends or varies any charge. Such copies may be certified copies rather than originals. o These documents must be kept at either the company’s registered office or such other location as is permitted under the Companies (Company Records) Regulations 2008 (s 859Q(2) CA 2006). o A company must inform Companies House of the place where such documents are available for inspection and of any changes to that place (s 859Q(3) CA 2006). These documents must be available for inspection by any creditor or member of the company free of charge and by any other person on payment of a prescribed fee (s 859Q(4) CA 2006). If a company refuses such inspection, then the court may order that the company allows an immediate inspection. o Under s 859Q(5) CA 2006, failure to comply with any of the above requirements will be an offence and the company (and every officer of the company who is in default) will be liable to a fine.

Answer 515

o defined in the loan and security documents o gives the bank contractual remedies such as the power to call in its money early if the borrower shows the signs of becoming an enhanced credit risk. o If the bank calls its money in early due to an Event of Default and BPL can’t pay, the security document will set out the bank’s powers:  Fixed charges - the bank will have the ability to appoint a receiver of the fixed charge asset(s) or to exercise a power of sale of the asset.  Floating charges - the floating charge stops floating and fixes to the assets in the relevant class which are owned by the bank at the time (‘crystallisation’). The bank acquires control of those assets and to this extent a crystallised floating charge is like a fixed charge.

Answer 516

allotment, transfer (or transmission) and buyback.

Answer 517

Pre- emption rights are rights of first refusal over shares which are being allotted

Answer 518

They do not apply in relation to the allotment of bonus shares (s 564), if the consideration for the allotment is wholly or partly non- cash (s 565) or if the shares are to be held under, allotted or transferred pursuant to an employee share scheme (s 566).

Answer 519

When the company is a plc or has more than one class of shares, how pre- emption rights are disapplied will depend on the nature of those companies’ initial authority to allot shares. We saw in 4.3.2.2 that companies which do not have automatic authority to allot under s 550 will need to pass an ordinary resolution under s 551 CA 2006 to give the directors authority to allot shares. If the ordinary resolution gave a general authority to allot (rather than authority in relation to a specific allotment) then s 570 allows the company to remove the pre- emption rights just by passing a special resolution. Disapplication will last as long as the directors’ authority under s 551.

Answer 520

* the reasons for making the recommendation; * the amount the purchaser will pay; and * the directors’ justification of that amount.

Answer 521

The transferor must complete and sign a stock transfer form and give it to the transferee along with the share certificate relating to the shares (ss 770– 772 CA 2006). If the sale price of the shares is over £1,000, the buyer must pay stamp duty (currently charged at 0.5% rounded up to the nearest £5) on the stock transfer form. No stamp duty is payable if the shares are a gift. The minimum stamp duty is £5. The transferee must then send the share certificate and stock transfer form to the company. The company should then: * send the new shareholder a new share certificate in their name within two months (s 776 CA 2006); * enter their name on the register of members within two months (s 771 CA 2006); and * notify the Registrar of Companies of the change in ownership of the shares when the company files its annual confirmation statement (CS01).

Answer 522

* if a shareholder dies, their shares automatically pass to their personal representatives (PRs); or * if a shareholder is made bankrupt, their shares automatically vest in their trustee in bankruptcy. Under MA 27, the trustee in bankruptcy and the PRs do not become shareholders of the company, but they are entitled to any dividends declared on the shares. The trustee in bankruptcy and PRs of a deceased shareholder can choose to be registered as shareholders themselves (unless the directors are entitled to refuse to register them as shareholders and refuse to do so) and can then sell the shares. Alternatively, they can sell them directly in their capacity as representative.

Answer 523

1. Firstly, the company’s articles must not forbid buyback (s 690(1)). 2. The shares must be fully paid (s 691(1)). 3. The company must pay for the shares at the time of purchase (s 691(2)). 4. The shares must usually be paid for out of distributable profits or the proceeds of a fresh issue of shares made for the purpose of financing the purchase (s 692(2)(a) CA 2006). What is meant by distributable profits is explained in s 830 CA 2006. They are the company’s accumulated, realised profits less its accumulated, realised losses. They are shown on the bottom half of the company’s balance sheet, under profit/ loss reserve. Please see 12.9.4 for a full explanation of company balance sheets. 5. The shareholders must pass an ordinary resolution authorising the buyback contract (s 694 CA 2006). 6. A copy of the buyback contract, or a summary of it, must be available for inspection for at least 15 days before the general meeting and at the general meeting itself (or be sent with the proposed written resolution when or before it is circulated (s 696(2)). 7. Under s 702 CA 2006, a copy of the buyback contract, or, if the contract is not in writing, a written memorandum setting out its terms, must be made available for inspection at the company’s registered office or SAIL as soon the contract has been concluded, for a period of ten years starting with the date of the buyback.

Answer 524

Unlike most overdrafts, the bank cannot demand repayment of a term loan or revolving credit facility whenever it wishes. It can do so only in accordance with the terms of the facility agreement. The facility agreement will set out the agreed repayment schedule for the loan. It may provide for repayment: (a) of the whole loan in one go at the end of the term (a ‘bullet’ payment); or (b) in equal instalments over the term of the loan (‘amortisation’); or (c) in unequal instalments, with the final instalment being the largest (‘balloon repayment’). Repayment in instalments will give the lender early notice should the business have difficulty in making repayments, because the business is likely to default on a payment if it is in financial difficulty. Repayments for a revolving credit facility will be towards the end of the facility period, whereas for a term loan they will be spread out more evenly throughout the period of the loan.

Answer 525

(a) Limitation of dividends. Companies must ensure that dividends and other distributions to shareholders do not exceed a specified percentage of the net profits. (b) Minimum capital requirements. The business must ensure that current assets exceed current liabilities by a specified amount of money or a specified percentage. (c) No disposal of assets, or change of business. The business must not dispose of assets without the lender’s consent, or change the scope or nature of the business. (d) No further security over the assets. The business must not create any further security over the whole, or any part, of the undertaking without the lender’s consent (a ‘negative pledge’ clause, see 5.17.8). (e) Provision of information on the business, for example, annual accounts.

Answer 526

Book debts are money owed to the company/ LLP by its debtors. As an asset, book debts may be charged. As book debts vary over time, they are suitable for charging by way of a floating charge, and case law has established that book debts could also be secured by a fixed charge where the charge holder had control over both the debts and the proceeds once they were paid. This might arise, for example, where the charge holder allowed the company/ LLP to collect the book debts, but then the company/ LLP had to pay over the money to the charge holder to settle part of the debt owed to the charge holder. If, on the contrary, the company/ LLP was able to use the proceeds from the book debts for its business purposes then this would indicate a floating charge.

Answer 527

(a) land, whether freehold or leasehold, and fixtures and fittings; (b) tangible property, such as machinery, computers and stock; (c) intangible property, such as money in a bank account, debts owed, any shares they own in other companies and intellectual property rights.

Answer 528

One advantage of a floating charge from the chargor’s viewpoint is that it allows it to deal with the secured assets on a day- to- day basis. Another is that, as a form of security which can attach to assets unsuited for a fixed charge or mortgage, it allows the chargor to maximise the amount that it is able to borrow. It is also advantageous that a floating charge may be taken over the whole of a company/ LLP’s business.

Answer 529

As a general rule, a fixed charge will take priority over a floating charge over the same assets A disadvantage of a floating charge from the viewpoint of the holder (the lender) is that the chargor is allowed to deal with the assets. The company could sell its existing stock and not purchase new stock to replace it, meaning that the lender does not have a charge over anything. So a floating charge over stock would be of little value in those circumstances. One solution to this problem is for the lender to take fixed charges over other assets of the business too. The more assets a charge holder takes a charge over, the better chance it has of being paid. A further disadvantage is that certain other creditors have the right to claim money from the proceeds of sale of the assets covered by the floating charge if the company/ LLP becomes insolvent before the charge holder itself gets the money. These include so- called ‘preferential’ creditors, who take priority over the holder of a floating charge but not over the holder of a fixed charge

Answer 530

The borrower will have to make a series of covenants (contractual promises) relating to the assets it is charging. The covenants will seek to ensure that the value of the assets is maintained by the borrower, for example by stipulating that the borrower will conduct proper maintenance and arrange adequate insurance.

Answer 531

The agreement will set out the circumstances in which the security becomes enforceable, for example if the loan payments are not made on time, if provisions of the charging document are breached or if the borrower gets into financial difficulty. It will also set out the lender’s powers, including the power to sell the assets which are the subject of the charge, to recover the debt due. If the lender is a qualifying floating charge holder (QFCH), the lender will be empowered to appoint an administrator without petitioning the court

Answer 532

(a) A fixed charge or mortgage will take priority over a floating charge over the same asset, even if the floating charge was created before the fixed charge or mortgage. (b) If there is more than one registered fixed charge or mortgage over the same asset, they have priority in order of their date of creation, not their date of registration. (c) If there is more than one registered floating charge over the same asset, they have priority in order of their date of creation, not their date of registration.

Answer 533

It is possible for creditors to enter into an agreement between themselves to alter the order of priority of their charges. This is known as subordination and the agreement is known as a deed of priority; it is executed by the creditors concerned and sometimes the company. This might happen, for example, if the holder of a fixed charge allowed a bank to have priority for its floating charge. Why would the bank do this? Perhaps the bank would only advance new funds to allow the borrower to continue to trade if the bank could have priority.

Answer 534

A floating charge ranks behind a later fixed charge or mortgage over the same asset, provided that later fixed charge or mortgage is properly registered. In order to prevent this from happening, it is usual to include in the floating charge documentation what is called a ‘negative pledge’ clause. This clause prohibits the company from creating later charges with priority to the floating charge (ie fixed or mortgage) without the floating charge holder’s permission. If a subsequent lender takes a charge over the same asset and has actual knowledge of the negative pledge clause then the subsequent lender’s fixed charge will be subordinate to the original floating charge. In practice, the existence of a negative pledge clause is disclosed by completing a section of Form MR01, sent to Companies House, and the clause itself will be included in the certified copy of the charging document which is delivered to the Registrar. It is important to note that constructive knowledge by the subsequent charge holder, for example merely because the existence of the negative pledge clause was revealed on Form MR01, is not enough. However, if the subsequent charge holder conducts a search of the company’s records at Companies House (as will usually be the case as part of checking the company’s suitability) then it will come across the certified copy of the charging document containing this clause. The subsequent charge holder will therefore have the required actual knowledge and will not have priority over the floating charge. It is also possible that the subsequent charge holder will be liable for the tort of inducing breach of contract. In order to protect itself from being in such a situation, the agreement for the subsequent charge should contain a covenant (contractual promise) by the company to the effect that there are no earlier charges which are subject to a negative pledge clause. If this is not true, the company will be in breach of that agreement and it may be terminated immediately.

Answer 535

Contracts can be entered into by a company using the company seal or on behalf of the company by a person acting under its authority, express or implied (s 43 CA 2006). This will often be a director, but could also be another employee if entering into contracts is part of their role.

Answer 536

Income is what the business earns from trading or offering its services, for example, money received for the sale of furniture in a furniture shop, or money paid for legal services supplied by a law firm. Expenses are items the business has paid for, and which it will benefit from for a short time. Examples include, the price paid for gas, electricity, petrol, or stock bought for resale – those sums it needs to incur in order for the business to operate. Assets are essentially what the business owns, or has a right to own. For example, its business premises, if it owns them; machinery; vehicles; cash and debtors (because it has a right to the money owed to it by its debtors, and, in theory, it will receive this money when the debtor pays). Whereas expenses will benefit a business for a short time, assets tend to provide a longer- term benefit to a business. Liabilities are what the business owes. Examples are money outstanding on a bank loan, or money owed to creditors.

Answer 537

Businesses need and want to know how well their business is performing financially, and what it is worth. The final accounts, which comprise the profit and loss account and the balance sheet, give them this information.

Answer 538

Income – Expenses = Profit

Answer 539

Businesses which buy and sell goods have a preliminary account called a trading account, in addition to their profit and loss account. Businesses engaged in the provision of professional services, like law firms, do not need a trading account. The trading account shows gross profit by subtracting the cost of sales (the cost of buying trading stock) from the income received from sales. This figure is the business’s gross profit. The gross profit is then transferred to the profit and loss account. Any other income, and other expenses such as utility bills, will also be added to the profit and loss account and factored into the calculation of net profit. Having a trading account as well as a profit and loss account means that businesses can see where the problem lies if they are not satisfied with their net profits. The trading account will enable them to assess whether their business is buying stock at too high a price or whether it is its other expenses, shown on the profit and loss account, which are reducing its net profit by so much.

Answer 540

he balance sheet shows the worth or value of the business by listing its assets and liabilities on the last day of the accounting period. It must be headed with the date of preparation. It is often described as a snapshot of the business, because it shows how much the business is worth on the day of preparation, and this could change the very next day.

Answer 541

Assets – Liabilities = Net worth of the business

Answer 542

The balance sheet does not just show assets in one section and liabilities in the other. It has two sections, one showing the value of the assets less liabilities owed to third parties and the other showing the amount owed to the proprietor as capital. These two amounts will be the same. It might help you to think of the top half as showing you where the money is – tied up in fixed assets, used to buy stock, in the business’s bank account, for example – and the bottom half as showing you where the money came from – the owner’s initial capital contribution and profits earned since trading began, for example: Employment of capital = where the money is now Capital employed = where the money originally came from As with the profit and loss account, the balance sheet calculation (Assets – Liabilities = Net Worth) is shown vertically. In the example set out below, you will see that the first part of the calculation (Assets – Liabilities) is followed by the value to the proprietor, and the sections are labelled ‘Employment of Capital’ and ‘Capital Employed’ respectively.

Answer 543

Assets are split into fixed assets and current assets. Fixed assets are used in the business to enable it to run effectively. Examples are business premises and machinery. Current assets are short- term assets. Examples are stock, debts and cash.

Answer 544

Liabilities are divided into current and long- term liabilities. Current liabilities are liabilities which are repayable in 12 months or less from the date of the balance sheet, for example, a bank overdraft or an invoice owed to a supplier. Long- term liabilities are liabilities which are repayable more than 12 months from the date of the balance sheet. The most obvious example is a bank loan. Assets appear on the balance sheet in increasing order of liquidity, that is, how easy it should be to turn the business’s assets into cash, to meet its short- term liabilities. So fixed assets are at the top with current assets underneath. This means that any premises will always be at the very top of the balance sheet, at the top of fixed assets, and cash will always be at the bottom of current assets. Net current assets is a key figure for a business. It shows the difference between current assets and current liabilities and it is an important figure because it shows the business’s liquidity. Net assets is another key figure, and is calculated by subtracting short- term and long- term liabilities from fixed and current assets. This figure will always be equal to the amount owing to the business owner as capital at the end of the year. The ‘Capital Employed’ section shows the value of the business to the owner. It consists of the balance on the capital account (which represents the amount put into the business by the owner(s)), and also the net profit from the profit and loss account (which represents the money the business has made over the year). Sometimes the business owner(s) will have withdrawn money over the year, and this will be shown on the drawings account. The balance on the drawings account is deducted from the other figures in the Capital Employed section. Understanding the balance sheet is crucial for a business owner, because it enables them to analyse the health of the business. If the business’s liabilities exceed its assets, it is clearly in financial difficulty. Even if it has a high assets figure, it may have little cash to pay invoices, and may risk insolvency proceedings if it cannot pay a creditor.

Answer 545

prepayment is a payment which the business has made in advance Prepayments are added to the balance sheet as current assets, labelled ‘Prepayments’. A prepayment will also reduce the value of the prepaid item in the expenses section of the profit and loss account.

Answer 546

Work which solicitors have carried out but for which they have not submitted a bill is called work in progress. This is classed as an asset, because once it is billed to the client, it should result in the business receiving a cash payment. It will appear as additional income (known as profit costs) in the profit and loss account for the current year and as an additional current asset on the balance sheet.

Answer 547

Unless they are in their first year of trading, businesses will begin their accounting year with some stock already in their warehouse, which they did not sell during the previous accounting period. They will then purchase stock during the accounting period, and there will undoubtedly be stock remaining at the end of that accounting period. This stock is called closing stock. Closing stock will be an additional item in the current assets section of the balance sheet, to show that the business will be starting the next accounting year with some stock already purchased.

Answer 548

A figure for debtors will appear in the balance sheet. Debtors are classed as a current asset, but not every debtor will pay. They may be insolvent, or may refuse to pay, and the business may not think it is worth the time and money to pursue the debt. The business should review its debts on a regular basis, and include those which it believes will never be paid (so- called ‘bad debts’) in the profit and loss as an expense. The effect of ‘writing off’ the debt in this way is that the debt will no longer be shown on the balance sheet: it will be deducted from the debtors figure. Doubtful debtors – those who may not pay – are entered in the expenses section of the profit and loss account as ‘provision for doubtful debts’ and are also subtracted from the debtors figure on the balance sheet.

Answer 549

Most assets depreciate over time. After several years, they will be worth nothing, or almost nothing. Some assets do not tend to depreciate, and they will appear in the accounts at the acquisition value. This figure will become less accurate the longer the asset is owned. Business owners may, in these cases, have assets revalued, and show the up- to- date value in the accounts.

Answer 550

If a business disposes of a fixed asset, it will usually receive cash by way of consideration. Therefore its total assets do not change, but its balance sheet will. The fixed assets figure will reduce, and the cash figure will increase. Usually, however, assets do not sell for exactly the value at which they are recorded in the accounts. If the asset is sold for more than the figure recorded in the accounts (‘book value’), it will be shown in the profit and loss account as profit. If it sells for less than its book value, it will be recorded in the profit and loss account as a reduction of net profit.

Answer 551

The section of the balance sheet which shows how much the shareholders have contributed is often headed ‘capital and reserves’, but is sometimes headed ‘Financed by’ or ‘Equity’. Shares are either issued at par value – meaning that, for example, a shareholder will pay £1 for an ordinary £1 share – or the shareholder will pay a premium to reflect the fact that the company is profitable and its shares are now worth more than their £1 nominal value. The premium will be shown separately, in the share premium account.

Answer 552

As we saw in 2.8.4, companies are only permitted to pay dividends from profits (although they could be paid from previous years’ accumulated profits, rather than the current year). However, companies are unlikely to distribute all of their net profit. This is partly because they need money to pay expenses and run the business. Secondly, much of the company’s profit may not be in the form of cash. Debtors are counted as an asset, so will be factored into the net profit calculation in the profit and loss account, but they do not produce any cash for the company until they pay. Or perhaps the company used some of the money it made during its accounting period to buy a fixed asset. If this is the case, the profit will be shown in the profit and loss account, but will not be represented by cash sitting in the company’s bank account; instead, it has been ploughed into a fixed asset. Dividends as such will not be included as an item in the profit and loss account but, once paid, the cash figure will be reduced accordingly.

Answer 553

The balance of the net profit, after tax and dividends, is retained in the business. These retained profits are generally known as the profit and loss reserve. Because the profit and loss reserve consists of profit the business has made while trading, it does not form part of the capital of the company. This means that it can be distributed to shareholders if the directors decide to recommend a dividend. Contrast this with share capital, which forms part of the capital of the company because it derives from the money shareholders have paid for shares. It is not usually available to shareholders because of the principle of maintenance of capital.