Closing a Ltd Company

Original Post:

IanR.

New Member
Sep 1, 2023
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My now ex-wife and I own 50% shares in our Ltd company.

The relationship has broken down to the point where she has threatened to close the company.

The company is solvent, profitable, owns stock and has an annual turnover of around £400k.

Can she do this unilaterally?

Thank you in advance, Ian.
 
Hi @IanR.

Given the circumstances it would be very difficult for her to do so legally.

I assume that she is not owed any money by the company? If she is a creditor and the company could not afford to repay, there would be remedies through the Courts.

I also assume that there is nothing unusual in the Mem and Arts.

Thanks.
 
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IanR.

New Member
Sep 1, 2023
4
2
Hi @IanR.

Given the circumstances it would be very difficult for her to do so legally.

I assume that she is not owed any money by the company? If she is a creditor and the company could not afford to repay, there would be remedies through the Courts.

I also assume that there is nothing unusual in the Mem and Arts.

Thanks.
Thanks Frank & Nico

This makes sense and was what I assumed but when she threatened, I was not 100% sure.

The articles were bog standard when the company was formed, the company does not owe her money and is solvent.

She is also saying that she is not approving any payments to suppliers.

I'm assuming that she is compelled to do the 'right' thing for the company and cannot block payments of genuine supplier invoices.

I'm thinking I will have to start a new company without her. What would I expose myself to if I sold the stock to a 3rd party for a very low value and then bought that stock with my new company?
 
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ChrisCallaghan

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    Hi @IanR.

    Given the circumstances it would be very difficult for her to do so legally.

    I assume that she is not owed any money by the company? If she is a creditor and the company could not afford to repay, there would be remedies through the Courts.

    I also assume that there is nothing unusual in the Mem and Arts.

    Thanks.

    @Frank Wessely this is not something I come across often, but couldn't a solicitor explore a just and equitable winding up petition? Though I assume this would be costly.
     
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    Newchodge

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    Thanks Frank & Nico

    This makes sense and was what I assumed but when she threatened, I was not 100% sure.

    The articles were bog standard when the company was formed, the company does not owe her money and is solvent.

    She is also saying that she is not approving any payments to suppliers.

    I'm assuming that she is compelled to do the 'right' thing for the company and cannot block payments of genuine supplier invoices.

    I'm thinking I will have to start a new company without her. What would I expose myself to if I sold the stock to a 3rd party for a very low value and then bought that stock with my new company?
    Is she a Director and do all payments require both signatories?
     
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    Newchodge

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    I'm thinking I will have to start a new company without her. What would I expose myself to if I sold the stock to a 3rd party for a very low value and then bought that stock with my new company?
    A huge amount of hassle. Don't think about it. You would be guilty of failing to act in the best interests of the company and she could take legal action against you on behalf of the company. The same way you could if she refuses to authorise payments to suppliers.
     
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    Newchodge

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    She is a director. My role is MD, she is Creative Director. Up until recently, I made all the payments for the company myself using online banking. 2 weeks ago she applied to be the bank to become the primary user for the account and locked me out of the bank.
    There is, therefore nothing to stop her emptying the bank account. Get onto the bank NOW
     
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    Lisa Thomas

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    One for @The Resolver me thinks...

    Why would she want to drag her company into the ground, it will only damage the value of her own shares and put her at risk of breaching her duties as Director.

    Sounds like one of you needs to buy the other out.
     
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    IanR.

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    One for @The Resolver me thinks...

    Why would she want to drag her company into the ground, it will only damage the value of her own shares and put her at risk of breaching her duties as Director.

    Sounds like one of you needs to buy the other out.
    It makes no sense to me!

    I'm working on that just now but she is not working logically
     
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    Lisa Thomas

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    Were the shares not dealt with as part of the divorce proceedings?
     
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    Michael Loveridge

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    Yet another example of why a shareholders' agreement should always be entered into - in fact it should be made compulsory where the shares are held 50/50!

    But as I assume there isn't one the obvious solution is for you to buy her shares.

    Without a shareholders' agreement there is no simple way of forcing her to sell them to you, but you at least need to talk to her and find out if she's willing in principle to sell.

    If she is then it's just a matter of agreeing a price. I note that you're divorced, in which case I'd have expected a formal valuation of the shares to have been obtained within the divorce proceedings, or at least for an agreed value to have been placed on the shares, in which case you can use that valuation as the basis for your offer.

    If, for any reason, no valuation has been obtained / agreed, and you can't reach agreement, then you will need to obtain a formal valuation.

    As you're going to be the continuing director it would almost certainly be beneficial to have your existing accountants provide the valuation. They will naturally be `on your side', as they will be expecting repeat business. You can justify choosing them to your ex by pointing out that they are familiar with the company, so will be a lot cheaper than external accountants.

    However, assuming she doesn't fall for that you will need to agree to employ an independent firm of accountants to value the shares.

    If she just refuses to co-operate at all then you should obtain your own back of the envelope valuation and use it to make her a formal settlement offer, known as a Part 36 Offer. This will effectively force her to get legal advice, as she won't understand what the offer is, which should get things moving.

    If it doesn't, then probably the best remedy is to issue a Winding Up Petition on the basis that the company is a quasi-partnership and that because of the deadlock it can't function.

    In practice, the court has the power to order her to sell you her shares at a price to be fixed by the court, but it's very unlikely it would ever get to a hearing, as merely issuing the Petition should be enough to bring her to her senses and to the negotiating table.

    All the above assumes, of course, that there is cash available to finance the share purchase. If you don't have the cash then it may be possible for the company to use its own resources to buy the shares itself, though it's quite complicated, and you would need appropriate legal advice.
     
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    Newchodge

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    Yet another example of why a shareholders' agreement should always be entered into - in fact it should be made compulsory where the shares are held 50/50!

    But as I assume there isn't one the obvious solution is for you to buy her shares.

    Without a shareholders' agreement there is no simple way of forcing her to sell them to you, but you at least need to talk to her and find out if she's willing in principle to sell.

    If she is then it's just a matter of agreeing a price. I note that you're divorced, in which case I'd have expected a formal valuation of the shares to have been obtained within the divorce proceedings, or at least for an agreed value to have been placed on the shares, in which case you can use that valuation as the basis for your offer.

    If, for any reason, no valuation has been obtained / agreed, and you can't reach agreement, then you will need to obtain a formal valuation.

    As you're going to be the continuing director it would almost certainly be beneficial to have your existing accountants provide the valuation. They will naturally be `on your side', as they will be expecting repeat business. You can justify choosing them to your ex by pointing out that they are familiar with the company, so will be a lot cheaper than external accountants.

    However, assuming she doesn't fall for that you will need to agree to employ an independent firm of accountants to value the shares.

    If she just refuses to co-operate at all then you should obtain your own back of the envelope valuation and use it to make her a formal settlement offer, known as a Part 36 Offer. This will effectively force her to get legal advice, as she won't understand what the offer is, which should get things moving.

    If it doesn't, then probably the best remedy is to issue a Winding Up Petition on the basis that the company is a quasi-partnership and that because of the deadlock it can't function.

    In practice, the court has the power to order her to sell you her shares at a price to be fixed by the court, but it's very unlikely it would ever get to a hearing, as merely issuing the Petition should be enough to bring her to her senses and to the negotiating table.

    All the above assumes, of course, that there is cash available to finance the share purchase. If you don't have the cash then it may be possible for the company to use its own resources to buy the shares itself, though it's quite complicated, and you would need appropriate legal advice.
    I din't think they are divorced yet.
     
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    My now ex-wife and I own 50% shares in our Ltd company.

    The relationship has broken down to the point where she has threatened to close the company.

    The company is solvent, profitable, owns stock and has an annual turnover of around £400k.

    Can she do this unilaterally?

    Thank you in advance, Ian.

    With standards Articles, it is not easy to see how she can on her own close the company down if you object. Normally a quorum would be two people for a two person company.
     
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    @Frank Wessely this is not something I come across often, but couldn't a solicitor explore a just and equitable winding up petition? Though I assume this would be costly.

    It would not appear on the face of it just and equitable to wind up the company (having stock, being solvent and profitable); it might appear unfair for that to arise and it does not seem really what @IanR. wants. Just and equitable winding up throws the potential Section 127 spanner into the works. This appears a potential Section 994 case albeit the numbers do not seem to suggest lengthy litigation is ideal at all. One for the Mediators perhaps to broker a settlement.
     
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    To Ian

    Her two main options are to either apply for it to be wound up on equitable grounds or apply to Court for a Court Appointed Receiver, usually on an unfair prejudice basis, to be appointed. In both scenarios she would have to demonstrate to the Court that it would be just and equitable to make that Order.

    Is it possible to get an independent valuation of the business, and then make her an offer on that basis?

    If you were to do that, and then if she did try to apply to Court, it would demonstrate that you are being fair and reasonable.

    I often act as a Court Appointed Receiver and you would always try to see whether one party could buy the other out, so that a healthy profitable business can continue.
     
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    It would not appear on the face of it just and equitable to wind up the company (having stock, being solvent and profitable);
    Solvency of the company doesn;t come into a J&E windingup. It's about whether there is deadlook and/or loss of mutual confidence and trust (as there is here).

    The OP needs to put on record the damage should she not authorise payments to suppliers and how the law gives him a right to sue in the name of the company for the damage caused by her to the company (suppliers refusing to supply and customers leaving ). So she not nly risks damaging the company in which she has half the shareholding but having to personally pay for the company's loss.

    I have acted in many of these 50/50 stand-offs (and advised here (search against my posts here over the past 16 years)).Two unusual tactics have been used, one including how a 50/50 1 of 2 directors can still be legally removed, (reliant on the ignorance of company law by the other shareholder) and one involving safely launching a rescue company to take over the business. Happy to explain if you PM.me.

    This cries out , though, for mediation. whch again I can help with
     
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    Solvency of the company doesn;t come into a J&E windingup. It's about whether there is deadlook and/or loss of mutual confidence and trust (as there is here).

    The OP needs to put on record the damage should she not authorise payments to suppliers and how the law gives him a right to sue in the name of the company for the damage caused by her to the company (suppliers refusing to supply and customers leaving ). So she not nly risks damaging the company in which she has half the shareholding but having to personally pay for the company's loss.

    I have acted in many of these 50/50 stand-offs (and advised here (search against my posts here over the past 16 years)).Two unusual tactics have been used, one including how a 50/50 1 of 2 directors can still be legally removed, (reliant on the ignorance of company law by the other shareholder) and one involving safely launching a rescue company to take over the business. Happy to explain if you PM.me.

    This cries out , though, for mediation. whch again I can help with

    It appears matters might depend on whether the breakdown is a loss of trust or an actual deadlock. The former might not be enough for a just and equitable winding up. The OP does not seem to want to wind up the company and there *might* be an alternative remedy. Just and equitable winding up appears to be a remedy of last resort as can be inferred from Section 125(2) of the Insolvency Act 1986.
     
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    But there clearly is deadlock since they have 50% each and the wife is refusing to authorise payments to suppliers. Lack of trust also is an inevitable result. i’m not saying he should rush into a winding up application ( and they are on the decrease compared to other solutions) but just clarifying for ukbf members in general.
     
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