How To Respond To The Share Buy Backs And Share Buybacks Consultation

Transcription

1 Our Ref JMG/RWC Darren Walcott Business Environment Directorate Department for Business, Innovation and Skills 1 Victoria Street London SW1H 0ET 15 November 2012 National Office Grant Thornton UK LLP Grant Thornton House Melton Street London NW1 2EP T +44 (0) F +44 (0) DX 2100 EUSTON Dear Mr Walcott Employee share ownership and share buy-backs consultation Grant Thornton UK LLP (Grant Thornton) welcomes the opportunity to comment on the consultation and draft regulations on employee share ownership and share buy-backs issued by the Department for Business, Innovation and Skills (BIS) in October Grant Thornton UK LLP is a leading financial and business adviser with offices in 27 locations nationwide and more than 25,000 individual and 15,000 corporate and institutional clients. We are a member firm of Grant Thornton International; one of the world s leading international organisations of independently owned and managed accounting and consulting firms. General comments We support promoting employee share ownership in businesses of all sizes and support the removal of unnecessary barriers to increasing employee share ownership. We believe that some of the proposals in the consultation will remove unnecessary barriers, in particular those relating to the authority required to buy back shares and permitting private companies to hold shares in treasury. However, we also believe that the capital maintenance requirements of company law are an important safeguard for creditors and are part of the price that companies pay for the limited liability status of their shareholders. In our view, these provisions should not be diluted lightly. We observe that the Companies Act 2006 introduced a new solvency statement procedure whereby private companies can reduce their capital without Court involvement. We note that the consultation paper appears not to acknowledge the existence of this potential route to address issues where a company has no distributable profits but needs to purchase its own shares. Therefore, we remain unconvinced that the current range of funding options in law is inadequate. Consultation period We note that the consultation was published on 30 October 2012 with a comment deadline of 16 November The very short comment period has meant we have been unable to hold meaningful conversations with our clients to canvass their views on the proposed changes. As a result, we are unable to respond to the issues raised in the consultation as fully as we would have been able to had the normal twelve-week comment period been available. Chartered Accountants Member firm within Grant Thornton International Ltd Grant Thornton UK LLP is a limited liability partnership registered in England and Wales: No.OC Registered office: Grant Thornton House, Melton Street, Euston Square, London NW1 2EP A list of members is available from our registered office. Grant Thornton UK LLP is authorised and regulated by the Financial Services Authority for investment business.

2 Our detailed comments are included on the attached response form. If you have any questions on this response, please contact Joyce Grant (phone: ; or Robert Carroll (phone: ; Yours sincerely Joyce Grant National Technical Partner For Grant Thornton UK LLP T E joyce.grant@uk.gt.com Enc 2

3 Employee ownership and share buy backs consultation: Response form The Department may, in accordance with the Code of Practice on Access to Government Information, make available, on public request, individual responses. Name: Joyce Grant, National Technical Partner Organisation (if applicable): Grant Thornton UK LLP Address: Grant Thornton House, 22 Melton Street, London NW1 2EP Telephone: Fax: Please return completed forms to: Darren Walcott Business Environment Directorate 1 Victoria Street London SW1H 0ET Or via employeeownership@bis.gsi.gov.uk Please tick a box below that best describes you as a respondent to this consultation: Business representative organisation/trade body Central government Charity or social enterprise Individual Large business (over 250 staff) Legal representative Local Government Medium business (50 to 250 staff) Micro business (up to 9 staff)

4 Small business (10 to 49 staff) Trade union or staff association Other: Accountancy practice Question 1 Do you agree that Company Law regulations on share buy backs and treasury shares can act as an impediment to further uptake of employee ownership? If so, to what extent? Comments: We agree. We see the lack of a market for shares in private companies and the potential difficulty in disposing of shares on exit of an individual as being disincentives to wider employee share ownership. Shareholders in private companies are often willing to provide shares to employees, but do not normally want them to retain ownership of these shares if they cease employment. Given the current Company Law requirements for the company to have sufficient reserves to pay for the shares, this can often lead to uncertainty as to which entity will acquire the shares from the departing employee. If the company is unable to purchase the shares then they may need to be purchased by other shareholders or by establishing an Employee Share Ownership Trust, the latter course in particular requiring significant legal and other professional time and costs. It would be highly desirable to find a Company Law, accounting and financing solution to allow a straightforward purchase of shares from departing employees. Question 2 What estimate do you make of the time or cost of complying with this regulation in your company/ the companies you represent; or of operating alternative arrangements such as an employee trust? Comments: We are unable to make an estimate of the time and costs for our clients in complying with these regulations, other than to note that we are aware from our experience that the professional costs to amend company articles and establish an Employee Share Ownership Trust are at least 2,000. Question 3 a) Do you agree that allowing private companies to arrange share buy backs should be subject to an ordinary resolution rather than a special resolution?

5 b) Would this change simplify the authorisation process, help remove unnecessary costs, and make employee ownership easier to administer? Yes No Not sure Comments: We note that if private companies were to be permitted to purchase their own shares subject to an ordinary resolution, then this should also apply to all purchases of own shares by public companies too. We are not convinced that there would be any significant cost saving for a private company to pass an ordinary resolution rather than a special resolution. Question 4 Do you agree that this proposal provide shareholders with adequate oversight and discretion over the activities of companies in the respect of share buy backs? Comments: An ordinary resolution must still be brought to the attention of all shareholders so we see no reason why this should not provide sufficient oversight and discretion over the activities of companies in respect of share buy backs. Question 5 a) Are there any potential issues or unintended consequences that could arise from implementing this proposal? Yes No Not sure b) Are there more effective alternatives? Yes No Not sure Comments: The very short time scale allowed for responding to this consultation means we are not able to give full consideration to this issue.

6 Question 6 What estimate do you make of the time or cost of complying with this regulation in your company/ the companies you represent, or of operating alternative arrangements such as an employee trust? Comments: Other than our comments in relation to professional costs in setting up an Employee Share Ownership Trust noted in response to Question 2, the very short time scale allowed for responding to this consultation means we are not able to give full consideration to this issue. Question 7 Do you agree that payments by instalments are? a) a useful flexibility for companies and shareholders b) an acceptable risk for general creditors Yes No Not sure c) an acceptable risk for selling shareholders Comments: A basic principle underlying limited liability companies is that their capital provides a 'creditors' buffer' and that shareholders are restricted in what they can take out of the business. Thus, there are long-established restrictions on distributions and restrictions on share buy backs and return of capital to protect the interests of creditors. We note that one of the changes introduced by the Companies Act 2006 was to permit deferred payment on redemption of redeemable shares and see no reason why, in principle, this should not be extended to purchase of own shares. We note from the Draft Regulations that permitting payment by instalments is proposed only for employee share schemes. We see no reason why this restriction should be imposed. However, we do not support any general weakening of restrictions which aim to protect the interests of creditors but nevertheless acknowledge that the requirement for a company purchasing its own shares to pay for them immediately causes problems in practice for many companies who may not have the required cash available immediately, even if their accounts show sufficient distributable profits. Hence, we propose that if payment by instalments were to be permitted for purchase of own shares, the resulting creditor due to the shareholder or former shareholder should rank behind other creditors in the event of insolvency. This would maintain some protection for creditors whilst also allowing companies more flexibility in how they pay for shares repurchased.

7 However, if the terms on which shares are provided to employees include a requirement for them to be repurchased at par value on cessation of employment (see our response to Question 9), it may be worth considering relaxing this principle, to allow for a more straightforward purchase transaction. Question 8 a) Do you agree that the maximum time period over which payments may be made should be solely a matter of negotiation between the buying company and the selling shareholder? b) Or should a maximum time period be specified in statute? Yes No Not sure Comments: The very short time allowed for this consultation does not permit us to provide an informed view on this point. However, as a general point of principle, we believe that specific restrictions in law should be avoided where possible and such issues left to the parties to negotiate. Question 9 Are the current financing restrictions an unreasonable limitation to companies seeking to buy back shares for the purposes of an employee share scheme? Yes No Not sure Comments: Aside from the issue of payments by instalments, which is addressed above, we do not believe that the current financing restrictions are an unreasonable limitation. As noted in our response to Question 7, we believe that the principle of maintaining a 'creditors' buffer' is an important one. The general principle underlying much of company law in relation to capital is to protect creditors and, in our view, this protection should not be diluted lightly. Therefore, in general purchase of own shares should continue to be financed out of distributable profits or the proceeds of a fresh issue of shares made for the purpose. We note that a fresh issue could potentially come from sale of treasury shares were private companies to be permitted to hold shares in treasury. We observe that the Companies Act 2006 introduced a new procedure for private companies to reduce their capital based on a solvency statement. We believe that this route provides a means for a company to purchase its own shares where it has no or insufficient distributable profit and no ability to make a fresh issue of shares. We see no reason why the current restrictions in the Companies Act 2006 should be relaxed further in this area, other than in the specific situation discussed below.

8 As noted in our response to Question 7, it may be worth considering permitting companies to purchase shares from departing employees at par only, with a relaxation of the requirement for this to come from distributable reserves or a fresh issue of shares in this limited circumstance only. Question 10 Do you agree that the current restrictions be removed without issues or unintended consequences for the remaining shareholders? Yes No Not sure Comments: The very short time allowed for this consultation does not permit us to provide an informed view on this point. However, we note that a departing shareholder would be in a better position than a continuing shareholder in the event of insolvency if any debt due to them were to rank as an unsecured creditor. A departing shareholder may not wish to remain exposed to the same degree of risk as a continuing shareholder. Hence, the approach of making unpaid instalments on shares repurchased rank behind other creditors, but ahead of shareholders, in the event of insolvency may provide an appropriate balance. However, we recommend that this approach be explored further before any final decisions are reached. Question 11 Do you agree that private companies should be able to hold shares in treasury? Comments: We see no obvious reason why a private company should not be allowed to hold shares in treasury. Permitting them to do so may make it easier for a company to operate a form of internal market in its shares, which may help to encourage employee share ownership. At present, many private companies that have employee share ownership operate employee share ownership plan trusts. There are many reasons for operating such trusts, one of which is to provide a means for departing employees to dispose of their shares without the company having to repurchase and cancel them. Permitting private companies to hold shares in treasury would reduce the need for such trusts but we are not convinced that such a change would obviate that need entirely. We believe that the existing restrictions for public companies that are allowed to hold treasury shares should be applied to private companies. In particular, purchase of such shares should be funded from distributable profits and if shares are subsequently sold for more than their purchase amount, the excess should be treated as share premium account. If a private company has insufficient distributable profits, the capital reduction via solvency statement route is available to address this issue whilst maintaining some protection for creditors. Thus we see no justification for further relaxation of the rules relating to treasury shares. We also note that not all public companies are currently allowed to hold treasury shares. If private companies were to be permitted to do so, then all public companies should be too.

9 Question 12 If you agree that it would be helpful for private companies seeking to administer employee ownership to have an ability to hold shares in treasury, can you estimate the extent of this benefit? Yes No Not sure Comments: We are not able to estimate the extent of this benefit. Question 13 Do you agree that shareholders will have sufficient oversight over private companies if they are able to hold shares in treasury? Yes No Not sure Comments: This will be influenced by the degree of employee engagement but we are not in a position to comment further on the level of oversight that employees might expect. How useful has this consultation been? On a scale of 1 to 5, 5 being the highest, grade your overall approval of the consultation Right problems identified Range of options wide enough Preferred options well chosen Comments: We observe that a comment period of less than three weeks is not sufficient for many potential respondents to be able to formulate properly considered responses to the questions asked. We also note that on the key question of increasing the number of funding options, the consultation sets out no specific proposals, which makes it difficult for us to provide meaningful comment.

10 Do you have any other comments that might aid the consultation process as a whole? Please use this space for any general comments that you may have, comments on the layout of this consultation would also be welcomed. Thank you for taking the time to let us have your views. We do not intend to acknowledge receipt of individual responses unless you tick the box below. Please acknowledge this reply At BIS we carry out our research on many different topics and consultations. As your views are valuable to us, would it be okay if we were to contact you again from time to time either for research or to send through consultation documents? Yes No

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