Companies act solvency statement

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The solvency statement: reducing share capital

We are seeing a trend of client companies seeking to reduce their share capital using the solvency statement procedure introduced by the Companies…

We are seeing an increasing trend of client companies seeking to reduce their share capital using the solvency statement procedure introduced by the Companies Act 2006. As such, we thought it would be useful to provide a refresher of the simplified process for reducing share capital by way of a solvency statement and the considerations which directors must make when they provide the statement.

Why reduce share capital?

There are various commercial reasons for a company reducing its share capital, such as:

• to return surplus capital to shareholders which is no longer required by the company;
• to eliminate or reduce losses of the company to allow it (for example) to declare dividends to shareholders;
• an alternative to a share buy back where the company does not have sufficient distributable reserves; or
• to reorganise and simplify group structures.

How may a company reduce its share capital?

The Companies Act 2006 prescribes two ways for a company to reduce its share capital, both of which require a resolution of at least 75% of the eligible members of the company (special resolution), which are:

1. by special resolution with the confirmation of the court; and
2. by special resolution supported by a solvency statement of the directors.

The solvency statement procedure is only available to private companies and the company must not be prohibited from reducing its share capital by its articles of association.

What is a solvency statement?

A solvency statement is a statement in writing signed by all of the directors which states that, as regards the company’s situation at the date of the statement:

• there are no grounds on which the company could be found to be unable to pay or otherwise discharge its debts; and
• the company will be able to pay or discharge its debts as they fall due during the 12 months immediately following the date of the statement, or, if it is intended to commence the winding up of the company within 12 months of the date of the statement, that the company will be able to pay or discharge its debts in full within 12 months of the commencement of the winding up.

The statement should not be made more than 15 days before the date of the passing of the shareholder’s special resolution.

Are there any sanctions on directors for providing solvency statements without having reasonable grounds for the opinions contained in it?

The Companies Act 2006 states that if the directors make a solvency statement without having reasonable grounds for the opinions expressed in it, an offence is committed by every director who is in default which can lead to imprisonment and/or a fine. It is therefore important that directors are aware of the financial status of the company so they can make a considered decision whether or not to provide the solvency statement.

What must the directors consider before they provide the statement?

• The directors should consider carefully the financial position of the company and the effect of the reduction of capital.
• They should take account of all the company’s liabilities (including prospective and contingent liabilities) of the company for at least the next 12 months…. READ FULL ARTICLE

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