The perfect time for housekeeping
With a general election on the not so distant horizon and the potential changes a new government may bring, now may well be the right time for business owners to start planning the next phase of their company’s growth. Getting your house in order will be key to maximising the value of your company – whether in respect of investment opportunities or potential sales. Our lawyers have a wealth of experience to help with a legal audit to avoid any unexpected pitfalls delaying or potentially even scuppering your plans.
Such pitfalls often arise because of issues with the share history of a company, typically resulting from buybacks (where a company buys its own shares back from a shareholder) not being completed in accordance with the strict requirements of the Companies Act 2006.
Defective buybacks can, if not resolved, create serious consequences and effectively mean the original shareholder (who had “sold” their shares to the company) still owns the shares. Accordingly, when it's time to sell, the original shareholder may have to be involved, meaning that the completion proceeds are shared with another unexpected seller…
Other unwelcome consequences of defective buybacks are that the original shareholder may also be entitled to dividends awarded since the date of the purported buyback and where that shareholder has voting rights, any resolutions passed without that shareholder’s consent may be invalid.
Prospective buyers or investors will require that any errors are rectified prior to a sale and, unless identified early on, this can lead to a costly and time-consuming process (including in some circumstances court proceedings). This can result in significant delays to the transaction or, worst-case scenario, transactions not proceeding at all where a buyer/investor/funder is uncomfortable with the risk.
Having come across numerous defective share buybacks, including those with deceased shareholders; missing purchase contracts; untraceable shareholders; and buybacks that took place circa 20 years ago; the Mills & Reeve team has a wealth of experience in negotiating positive outcomes for their clients. Despite this, they have also seen deals abort when the buyer’s funder just cannot get comfortable with the proposed solutions provided, so defective buybacks can derail the whole transaction.
The Mills & Reeve team has a range of experience in helping clients through these issues but the earlier these are addressed the better to allow your transaction to run smoothly and efficiently. Now is the perfect time to contact our team, who can assist with legal housekeeping ahead of your sale.