1 a tina and philip
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1 a tina and philip

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  • 199999/294
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1 a tina and philip 1 a tina and philip Presentation Transcript

  • web: www.locality.org.uk email: [email_address] tel: 0845 458 8336
  • Emerging from a Merger Lessons learned from the merger of bassac and DTA Tina Winders Director of Finance and Corporate Services Locality
    • History of partnership working
    • Community Alliance
    • Membership
    • Corsham Street - joint staff
    The case for merger
    • Exit strategy for end of a programme
    • Manchester Settlement meeting
    • Trustee engagement
    • Financial
    • Need - on either side?
    The catalyst
    • Staff relationships
    • Chief Executives
    • Finance/operations directors
    • Funders
    • Strategic Partners
    Trust
    • Merger v take over
    • Sensitivities
    • Larger = more generous
    • Culture – acknowledge differences, what will new organisation be like.
    • Perceived differences greater than actual
    Perceptions
    • Lawyers (BWB)
    • Independent consultants (IVAR)
    • HR – in house/ Croner
    • PR and branding (Public Life)
    Professional Help
    • Costs
      • Legal fees
      • Pension liability
      • Redundancy costs
      • Rebranding, launch
      • Due diligence accountants fees
      • Governance, additional meetings etc
      • Cancelling supplier contracts
    • Benefits
      • Synergy of 2 member networks
      • Savings in SMT, support staff
      • Reduced costs of audit, insurance, annual member conference, regional networks
      • Opportunity to refresh, marketing etc
      • Taken more seriously, more able to sit at the “top table”
    Costs v benefits
    • Time – too quick v too slow
    • Consultation union/staff forum
    • Various types of communication
    • Joint team days, social events
    • Listen
    • Be prepared to change plan
    Process
    • DTA-bassac/ bassac-DTA
    • Suggestions ranged from “bastads” to “community matters”!
    • Shortlist of 6
    • (Nearly!) Unanimous support for
    • locality
    What’s in a name?
    • Director of integration
    • Lots of form filling and new signatures needed!
    • Need to things get in the right order
    • Launch – venue, publicity
    Next steps
  • locality.org.uk
  • Part 2 Structures and Legal Considerations Philip Kirkpatrick Co-Head Charities and Social Enterprise Department Bates Wells & Braithwaite London LLP
  • Spectrum of collaborative arrangements
    • Sharing knowledge
    • Collaborative working on issues/projects
    • Joint venture by contract
    • Joint venture through new entity
    • Shared purchasing
    • Shared services
    • Merger
  • Main Collaborative Structures
    • Un-documented joint working
    • Memorandum of understanding
    • Written contract (JANE)
    • Partnership agreement
    • Limited liability partnership
    • Limited company
    • Group structure
    • Federation
  • Collaboration Checklist
    • Compatible objects?
    • Objectives of collaboration
    • How long will it last?
    • Who contributes what?
    • When and how?
    • Effect on staff?
    • Who employs / seconds?
    • Who disciplines?
  • Collaboration Checklist
    • Management and governance processes
    • Who decides what? How?
    • Steering committee?
    • Role of the boards
    • Communications – internal and external
    • Policies
    • Budget and budgetary control
    • Accounting arrangements
  • Collaboration Checklist
    • Admission of new partners / members
    • Profit distribution
    • Tax and VAT
    • IP and data ownership / management
    • Liability:
      • contract
      • tort
    • Insurance
    • Dispute resolution
  • Collaboration Checklist
    • Conflicts of interest
    • Data protection
    • Joint ownership problems:
      • land/premises
      • intellectual property
      • other assets
    • Methods/timing of termination
    • Consequences of termination
  • Basic Merger Structures: Asset Transfer 1 A B
  • Issues on Asset Transfer 1
    • B assumes liabilities of A
    • Therefore good due diligence vital
    • Simpler/cheaper resulting governance and management structure
    • Feels like a takeover (but it needn’t)
  • Basic Structures: Asset Transfer 2 A B C
  • Issues on Asset Transfer 2
    • As with Asset Transfer 1 except:
    • feels less like a takeover
      • more expensive
    • If you had to pay the costs personally, how would you do it?
  • Basic structures: Group 1 B A
  • Basic Structures: Group 2 C A B
  • Issues with Groups
    • Tighter than mere contract arrangements
    • Cheaper to establish
    • No transfer of liability
    • More complex/expensive governance
    • More complex/expensive management
    • Easier to persuade boards?
    • Useful stepping stone?
  • Basic Structures: Federation F M M M M M M
  • Issues with Federations
    • Collaborative rather than merger structure
    • No transfer of liability
    • Role is to co-ordinate/support independent activity
    • One member can damage reputation of all
    • Need clear, binding rules of conduct/membership
    • Need proper control of IP
    • Federation needs to add value
  • Legal Due Diligence
    • Objects and powers
    • Members
    • Structure – corporate / unincorporated?
    • Regulatory support / approval?
    • Contracts / grants
    • Debts
    • Employees and TUPE
    • Pensions
    • Litigation / disputes
  • Legal Due Diligence
    • Properties
      • freeholds / leaseholds
      • restrictions on disposition (s 36 CA 1993)
      • charges
      • condition
    • Permanent endowment / specie land
    • Other special trusts
  • Legal Due Diligence
    • Hire purchase / leased assets
    • Intellectual property
    • Information technology
    • Investments
    • Tax / VAT
    • Trading company
    • Data protection
    • Insurance
    • Other sector specific issues
  • Merger Agreement
    • What transferring?
    • Warranties and indemnities – where does risk lie?
      • ongoing contractual liabilities
      • known creditors
      • unknown creditors
      • liabilities arising from breach of trust
      • liabilities arising from excusable breaches of trust
      • run-off insurance?
  • Merger Agreement
    • Conditions
      • consents from / registration with regulators
      • consents from funders / contractors
      • member approval
    • Pre-assignment / novation / consent contract / lease arrangements
    • TUPE
    • Announcements
  • Philip Kirkpatrick Partner Co-Head of Charity and Social Enterprise Bates Wells & Braithwaite London LLP p.kirkpatrick @bwbllp.com DD: 020 7551 7835 www.bwbllp.com