Potential Implications of Insolvency for Directors

Here is a note of the issues that a director of an insolvent company or potentially insolvent company has to take into account. The relevant legislation is primarily contained in the Insolvency Act 1986 (the "Act").

Definition of Insolvency - Section 123 of the Act states that a company is "unable to pay its debts" (i.e. it is insolvent) when the company is unable to meet its debts as and when they fall due. This is commonly referred to as a "Cash Flow Insolvency"; or

the amount of the company's liabilities (including its actual and contingent liabilities) exceeds the value of its assets on a balance sheet basis. This is commonly referred to as a "Balance Sheet Insolvency".

Where a company is or is about to become insolvent its directors must act in the best interests of the company's creditors (as opposed to the company's shareholders) and there are certain corporate and personal consequences for those directors if they fail to do so.

The Corporate Consequences of Insolvency

Preference claim - A preference is a transaction which has the effect of placing a creditor in a better position if the company goes into liquidation than if the transaction had not occurred. If the transaction occurs within six months of the company's liquidation, the liquidator can apply to have it set aside but he must prove that the directors in entering into the transaction were influenced by a desire to produce the preferential effect. In the case of a transaction with a creditor who is a connected person (for example any of the company's shareholders, subsidiaries or directors) the period of six months is extended to two years and it is also presumed (unless the contrary can be proved) that there was a desire to prefer the creditor. A classic example of a preference is where the company repays its inter-company debts or director's loan accounts ahead of its other creditors shortly before its liquidation. However paying a creditor who has refused to make further supplies may not be a preference if the primary purpose of the payment was to secure supplies which could not be obtained elsewhere.

Transactions at an undervalue

A transaction at an undervalue occurs when a company disposes of its assets for significantly less than they are worth. Once again, a liquidator can apply to have the transaction set aside if it occurred within two years of the company's liquidation. A classic example of a transaction at undervalue is where the company transfers its business and/or assets to a creditor, director or another party for a nominal amount. If you are considering a transfer to say a current client or any other third party it is important to ensure market value is paid and/or the transfer insured against set aside.

Personal Consequences of Insolvent Liquidation

Wrongful Trading - Section 214 of the Act states that, if the directors (including any shadow directors - see below) of a company allow it to continue trading when they knew or ought to have known that there was "no reasonable prospect" of the company avoiding insolvent liquidation (see 1 above), they can be held personally liable for the debts incurred. A shadow director is a person, or entity, who has effective control over the company's board (i.e. the company's directors are accustomed to act in accordance with that person's instructions). The only potential defence available to the directors is to show that they took every possible step to minimise the potential loss to the company's creditors. It is not sufficient to show, for example, that the directors believed that the company's financial situation might improve because of market forces that are beyond their control [MC Bacon Limited [1990]].

The directors may be able to justify trading for a short period of time if they are:

Trying to sell the whole or part of the company's business and/or assets as a going concern; or

awaiting a decision regarding further funding (for example by the shareholders or by a venture capitalist).

In these circumstances the directors should: investigate whether the company's overheads and operating costs can be reduced; only pay the creditors that are crucial to the preservation of the business and assets (e.g. essential supplies, employees salaries, and judgment creditors who are about to or have taken "key" assets);

postpone all other payments; not incur any new liabilities (except for immediate payment in cash see below); and

document their decisions (usually in suitably detailed minutes). Please note that such a minute will not be an effective defence to liability if there is no reasonable prospect of avoiding insolvent liquidation and steps are not taken to minimise losses to creditors. The director's goal should be to ensure that the company's liabilities do not increase. One way to do this is to "rule off" the account and pay for all further supplies and services on a "cash on delivery basis".

Fraudulent trading

Any director or shadow director who knowingly allows a company to continue trading with the intent to defraud its creditors or any other person can be held personally liable to pay compensation. Further, if fraudulent trading is established the director and/or shadow director will also be guilty of a criminal offence. It is unusual for a liquidator to pursue a fraudulent trading claim as the onus is on him to show that the director had the requisite fraudulent intent.

Disqualification

If, following liquidation, administration or administrative receivership, the DTI is able to demonstrate that the conduct of a director (including a shadow or de facto director i.e. a person who acts as a director without having been properly appointed) makes him unfit to be concerned in the management of a company (if, for example, a preference, a transaction at an undervalue and/or wrongful or fraudulent trading has occurred), then the director can be disqualified for a minimum period of two years up to a maximum of fifteen years. The disqualification will mean that the director will not be able to be involved in the formation, promotion or management of any company in the United Kingdom during the disqualification period.

A director also faces disqualification if:

He breaches any fiduciary or other duty he owes to the company (this may include a situation where there is an express or implied obligation to safeguard client monies such as in a principal agent relationship); and/or

he fails to comply with any of the duties imposed by the Companies Acts (for example the obligation to maintain proper books and records).

Options

Where the directors believe that there is a serious risk that the company may not be able to avoid going into insolvent liquidation the directors should consider seeking the advice of an independent licensed insolvency practitioner (the "IP"). Most accounting firms have IP partners. The IP would review the company's financial position and consider with the directors the options available to the company. These options include:

1. Continuing trading under the guidance of the IP;

2. Requesting further funds from the company's shareholders;

3. Obtaining additional funds from a venture capitalist factoring or trade asset based finance company;

4. A sale of the company's business and assets as a going concern outside any formal insolvency procedure;

5. Administration, which is a court driven procedure which stops the creditors or any other party from taking adverse action against the company while the IP considers the way forward. This process is similar to Chapter 11 in the United States ;

6. A company voluntary arrangement whereby the company agrees a payment schedule or some other proposal with its creditors;

7. Making a request for the appointment of an administrative receiver if the company has granted a fixed and floating charge (I am unaware of the funding arrangements of the Company);

8. A creditors voluntary liquidation whereby the company convenes a meeting of its creditors to appoint a liquidator; or

compulsory liquidation whereby the company is wound up by the court following the presentation of a petition by its directors, shareholders or any creditor who has an undisputed debt for more than 750.

Conclusion

Though incorporation can shield shareholders from liabilities, the directors (who are often the shareholders as well) face a series of challenges in the event of financial difficulties that can, if advice is not sought early, result in personal liability.

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I owe, I owe, it is off to work I go. This is a common no nonsense saying that has been used for many years. Most of the people that make this statement are saying I am in debt.

When you are in debt, you just have to start linking debt to solutions. When you think solutions, your mind often opens up to new ideas. New ideas are a guider that directs you to discovering your choices.

Your choices include

Debt management

Time management

Debt consolidation

Debt counseling

Bankruptcy

The last option of course is something you want to avoid, so start thinking debt management. Debt management is a structural process. You begin by evaluating your debt. Think of each item you pay for weekly. Once you create a list you commence to eliminating, some of your debt by terminates some of your expenses. For instance, if you pay weekly for cable television, you can save money by thinking of your package. If you spend $11 weekly, which amounts to $55 monthly you may have options to reduce your monthly cable bill. Perhaps you can accommodate to basic cable rather than pay full cost for all features.

With time management, you construct a debt management solution. Instead of focusing first on your debt, you compare the time you spend each week to progress. If you spend too much time eating out, you see that by cutting back on dining out you can save money and time.

Debt consolidation is an option, yet you want to explore each company. The goal is to reduce debt, not increase the debt you owe. Some debt consolidation companies will charge fees, hidden fees, high interest, etc to help you payoff your debt. Look for debt management solutions instead of going this route. If you see no other recourse, then check the background of each company you are considering debt consolidation.

Debt counseling is another option. Like debt consolidation options, you want to find a way to reduce debt, rather than take on additional debt. Check the background of each company to make sure it has a good reputation, certifications, license, etc to offer you debt alternatives.

As I mentioned earlier, you want to avoid bankruptcy. Therefore, start linking debt to solutions to find a way to manage your money.

The best alternative is debt management. If you can set up a structural pattern, you will reduce your debt dramatically. Instead of spending time saying, "I owe, I owe, it's off to work I go" - do something about your debt problem now.

Visit your local library and take out some systematic guides to relieving debt. These resources offer you great solutions that link to debt reduction.

Recently, my newspaper reported that a local bank ...earned a four star excellence rating for the sixty-fourth consecutive quarter. Thats sixteen years of four star excellence! The article went on to say that the rating is based on a complex formula that includes capital safety levels, quality of loan portfolio, and the ability to meet obligations The press release was designed to showcase the value of this bank and demonstrate its prominent position in the economy.

As a former banker with over seventeen years of commercial experience, I chuckle at this information being tossed around by the bank and its regulatory agencies for self promotion and marketing purposes. I suppose that if you are a blue-hair whose purpose is to find somewhere other than under the mattress to keep your retirement funds, this article was good news. But what does it mean to the business owner or entrepreneur looking for a Funding partner to participate in an opportunity to grow, increase jobs and profit? In a nutshell this type of information should be a wake up call to find another bank-heres why.

Lets explore the underlying meaning to business customers behind a portion of this complex formula.

Capital Safety Level

In laymans terms this means that the bank has more than adequate reserves of Cash. Cash that is available, but not loaned out its Capital Safe. Banks that have high reserves of Capital can be presumed to be low on the scale of aggressive lending. They hoard Cash - even though they cannot make the same return on reserved Cash as they can on employed Cash. But for the bank, its less risky to hoard Cash than to loan Cash, and therefore contributes to their four-star excellence rating.

Quality of Loan Portfolio

A high quality loan portfolio means that the banks loan loss experience is at or above levels set by regulatory agencies. One can infer that the bank therefore takes fewer risks. Bankers are not supposed to be entrepreneurial or take risk. A banker has never been rewarded for taking risk! The banking system rewards those who can decline any borrowing request outside of the underwriting parameters. Loan portfolio quality thats high = low loan accessibility to business owners. It stands to reason that banks are not risk takers based upon the low returns they are willing to accept.

Banks with four star excellence ratings seek out commercial customers who are stable and have limited need to borrow. The other 72% of business customers are left outside the circle of these banks. Where do these businesses turn to Cash Flow the Working Capital needs of their business? Where do they go to fund opportunities for growth and development of new market niches? More often than not they turn to the widely accepted world of non-traditional funding sources - preferred SBA lending companies for real estate and fixed asset needs, leasing companies for equipment needs, and Factoring companies for Working Capital needs. These non-traditional funding sources evaluate opportunities to participate by lending funds to small & medium sized businesses. Non-traditional lenders rates on borrowed funds may be higher than traditional bank rates, but their mission is to employ funds to obtain a return, not to let cash sit idle on the sideline in order to obtain a four star excellence rating. Their pricing reflects the perceived risk. And, they are not restricted by regulatory bureaucracy or fear of losing their four star rating as banks are.

In this ever changing world, business owners are advised to explore opportunities outside of the traditional financing channels. Before a need arises a business should be familiar with alternative funding sources. And perhaps, when your bank informs you that they continue to achieve a four-star excellence ratingit would be wise to investigate your options pertaining to Working Capital and Cash Flow solutions.

I have been all around the car business for years and I hate to see people make mistakes that hurt them in the end. Simply buying a car from a tote the note dealership is a terrible waist of money, it is always overpriced and does nothing but damage your credit report. The reality is that there are ways to get a car with the same qualifications that a tote the note lot wants you to have. The difference is it will be reported to all the major credit bureaus and usually has a warrantee to give you a piece of mind.

This is how a tote the note lot works, they shop used car auctions and buy cars that major dealers don't want, usually for under $3000. Most of the time they don't even dive them if the seller (another used dealer) says that it is good. Then they put it on their lot for $5999, yes that much profit. The reason is simple your down payment is usually about half or all of what they have spent on the car. Then your payments for the next 4-5 years are mostly, or all profit for them, but does nothing for you. In the next four or five years if you have a car problem you are just stuck in a bind. If you call the lot they say it is not their problem, or they say they will have their shady-tree mechanic fix it. Then extend your note so they can make some more money from you. If you can't afford to fix it you still have to pay or they will repo it, and most times report it onto your credit report. That's the problem they only report if you default on your credit report. They don't report all the payments on time you made. They don't want your credit to get any better so that you and others have to come back and buy cars from them. Then they take that same car and sell it to somebody else, and guess what, this time it is all profit. There is a better way.

There are some major dealerships (Dodge Chevy Ford) that have special finance programs that work especially with people with poor credit, or even no credit and even without a cosigner. The way this works is a car is traded in, and the dealership has their service station inspect it. They load the info like miles, condition, make and model into a program and the special finance lender determines the price. That way you can't get overcharged. The reason is that the lender does not want to repo the car and have to resale it. That's why they will usually give you a 2-3 year payment around 250 mo so that you can pay it off quick. Usually they like to cover it with a warrantee for special finance customers. Just incase your car breaks down you will be able to have it fixed and continue your payments.

Here is the best part, a special finance company will report to the bureaus every month of your on time payments, that will start to raise your credit score. All you need is six months to a year of on time payments on your report, and then a regular lender will give you a shot. A major dealership wants your credit to get better so you can comeback and buy again.

"But I went to a major dealership and they embarrassed me about my credit." you say, not all major dealerships deal with special finance. There is an even easier way; you can apply for your financing online, with special finance lenders. Then you never have to worry about the public rejection of the dealership, and they never see your credit. Most companies will approve you instantly or in 24 hours. You can print your approval out and go and shop like everybody else.