Cash Boxes: Use of Jersey Companies in Rights Issues - International Law Office

International Law Office

Offshore Services - Jersey

Cash Boxes: Use of Jersey Companies in Rights Issues

March 19 2009

Background
What Is a Cash Box Structure?
Advantages of Using Jersey Companies


Structuring a rights issue for a UK listed company (PLC) using a Jersey cash box vehicle can make it easier to implement and add to the benefits therefrom. The advantages that a cash box structure offers are flexibility in relation to making the offer and, in relation to the proceeds of the issue of the shares, the availability of merger relief under the UK Companies Act.

Background

The turmoil in the financial markets has reduced the availability of debt financing and simultaneously created a need for banks and other companies to recapitalize their balance sheets. There are various methods of raising equity capital, but for large equity fund raisings, rights issues are probably the preferred mechanism since:

  • they are perceived as fairer to the wider body of shareholders than other methods;
  • the right to subscribe for the shares is tradable; and
  • there is no maximum discount at which the shares can be offered, unlike in the case of placings and open offers.

However, rights issues can be slow or cumbersome to implement. Until the beginning of 2009, rights issues for UK PLCs required a minimum of 23 days (or 39 days where a general meeting is required), and could take considerably longer. This had a number of undesirable consequences, which the Financial Services Authority recognized in its recent policy statement reducing the minimum rights issue subscription period in the Listing Rules to 10 business days.

The Association of British Insurers (ABI) has also revised the guidance it issues about the expectations of institutional investors in relation to authorizing the allotment of new shares and disapplying statutory pre-emption rights in respect of allotments. ABI members will now regard as routine requests for authorization to allot new shares in an amount of up to one-third of the existing shared capital and, subject to satisfying certain criteria, will also regard as routine requests to authorize the allotment of a further one-third. The effect is that rights issues have become a quicker and easier way of raising equity capital.

Where a cash box structure is used, it allows flexibility in making the offer because the shares are issued for non-cash consideration and, consequently, the offer is not subject to the pre-emption restrictions that apply where shares are issued in return for cash. The benefit of this flexibility is clear in relation to placings, but it is also valuable in relation to rights issues, particularly where there are shareholders resident outside the United Kingdom, and for the purposes of placing shares which are not taken up under the rights issue.

Cash box structures also enable the rights issue to be structured so that the requirements for merger relief may be met for the shares issued in the rights issue. The advantage of this is that the requirement to account for share premium is relieved and distributable reserves can be created.

This update describes how cash box structures work and some of the reasons why Jersey companies are particularly well suited to cash box structures.

What Is a Cash Box Structure?

Incorporation of a subsidiary
A UK PLC that wishes to make a rights issue incorporates a new subsidiary which acts as the 'cash box'. The cash box is usually incorporated in Jersey, but in order to avoid the need for Her Majesty's Treasury consent under the UK Income and Corporation Taxes Act, the cash box must be managed and controlled in the United Kingdom for the purposes of UK tax. If merger relief is to be sought, a proportion of the equity share capital of the cash box needs to be held by the institutions acting as underwriters of the rights issue by the UK PLC.

The cash box will also have a class of redeemable preference shares for issue to the underwriters.

Subscription for and transfer of shares in the cash box
The UK PLC, underwriters and cash box enter into a series of agreements under which:

  • the UK PLC and the underwriters agree to subscribe for and pay up their respective ordinary shares in the cash box;
  • the underwriters agree to subscribe for the redeemable preference shares in the cash box, to be issued fully paid for an amount equal to the net proceeds of the rights issue and to transfer to the UK PLC all of the shares in the cash box held by them in return for the issue by the UK PLC of shares to investors exercising their rights; and
  • the UK PLC agrees to issue new shares to investors taking up the rights in exchange for the transfer to the UK PLC by the underwriters of the shares that the underwriters hold in the cash box.

The agreements also contain option arrangements to enable the structure to be unwound if the issue of the UK PLC's shares does not proceed.

Where a cash box structure is used in connection with a rights issue, the agreements will usually provide for the cash box to issue more than one tranche of shares. A first tranche of ordinary and redeemable preference shares are issued to the underwriters in conjunction with the initial take-up of rights of the UK PLC and are transferred by the underwriters to the UK PLC in consideration for the issue by the UK PLC of its ordinary shares under the rights issue.

Further tranches of redeemable preference shares and ordinary shares may also need to be issued to the underwriters in respect of shares that are not taken up in the initial rights issue.

If it is necessary for there to be further issues by the cash box of redeemable preference shares, it will also need to issue further ordinary shares in conjunction with the issue of redeemable preference shares so that the requirements for merger relief are satisfied in relation to each issue of shares by the UK PLC and each transfer by the underwriters of shares in the cash box to the UK PLC in consideration for the issue of those shares.

Payment of cash to UK PLC
As a result of the transfers of the cash box shares, the cash box becomes a wholly owned subsidiary of the UK PLC holding funds equivalent to the net proceeds of the rights issue.

These may be lent by the cash box or paid to the UK PLC by way of redemption of the redeemable preference shares or distributed to the UK PLC in a winding-up of the cash box.

Advantages of Using Jersey Companies

Jersey companies are suited for use in cash box structures for the following corporate and tax reasons:

  • Jersey companies can be incorporated within a short timescale: using the urgent process, same-day incorporation can be achieved for an additional filing fee of only £200.
  • Jersey companies are typically incorporated on a bespoke basis and are not shelf companies; incorporating a bespoke company makes it easier to demonstrate that the cash box is a subsidiary of the UK PLC with UK management and control from incorporation.
  • Jersey companies can be managed and controlled in the United Kingdom: there is no requirement for board or shareholder meetings to be held in Jersey or for there to be Jersey resident directors.
  • Jersey companies must retain their share registers and registered office in Jersey so that shares are transferred outside the United Kingdom.
  • A Jersey company can redeem shares from any source of funds, including share capital, making Jersey companies more flexible in this regard than UK companies.
  • Jersey companies law enables Jersey companies to issue no par value shares. These are shares that do not have a specified par value, but are issued for an agreed price recorded in a stated capital account. The whole of the stated capital account may be used for the purposes of redeeming the shares.
  • Winding up solvent Jersey companies (eg, at the end of the life of the cash box) is a simple and quick procedure. It is not necessary to appoint a liquidator and the process can be completed within a day.
  • Jersey companies can be tax neutral and assist with the UK tax analysis. The Jersey tax position of the cash box can be summarized as follows:
    • it is liable to 0% Jersey tax on income;
    • it is not liable to Jersey capital gains tax;
    • it is not liable to Jersey withholding tax;
    • no Jersey duty is payable on the issue or transfer of shares;
    • Jersey companies are not resident for tax purposes in Jersey if the business is centrally managed and controlled outside Jersey in a country or territory where the highest rate at which any company may be charged to tax on any part of its income is at least 20%; and
    • transfers of shares are carried out on the register, which is required to be maintained in Jersey, and all transfers and share certificates can be executed and retained in Jersey, outside the United Kingdom.
  • Jersey has an experienced professional infrastructure accustomed to managing the regulatory, technical and practical demands of cash box structures.

For further information on this topic please contact Jonathan Walker at Mourant du Feu & Jeune by telephone (+44 1534 609 000) or by fax (+44 1534 609 333) or by email (jonathan.walker@mourant.com).


Comment or question for author

ILO provides online commentaries as specialist Legal Newsletters. Written in collaboration with over 500 of the world's leading experts and covering more than 100 jurisdictions, it delivers individually requested information via email to an influential global audience of law firm partners and international corporate counsel. Please click here to register for the service.

The materials contained on this website are for general information purposes only and are subject to the disclaimer.

ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription. Register at www.iloinfo.com.