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Mergers and Collaborations, Philip Kirkpatrick, Bates Wells and Braithwaite and Tina Winders, Development Trusts Association
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Mergers and Collaborations, Philip Kirkpatrick, Bates Wells and Braithwaite and Tina Winders, Development Trusts Association

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Practical guidance on mergers and collaborative working arrangements.

Practical guidance on mergers and collaborative working arrangements.

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  • Transcript

    • 1. web: www.locality.org.uk email: [email_address] tel: 0845 458 8336
    • 2. Emerging from a Merger Lessons learned from the merger of bassac and DTA Tina Winders Director of Finance and Corporate Services Locality
    • 3.
      • History of partnership working
      • Community Alliance
      • Membership
      • Corsham Street - joint staff
      The case for merger
    • 4.
      • Exit strategy for end of a programme
      • Manchester Settlement meeting
      • Trustee engagement
      • Financial
      • Need - on either side?
      The catalyst
    • 5.
      • Staff relationships
      • Chief Executives
      • Finance/operations directors
      • Funders
      • Strategic Partners
      Trust
    • 6.
      • Merger v take over
      • Sensitivities
      • Larger = more generous
      • Culture – acknowledge differences, what will new organisation be like.
      • Perceived differences greater than actual
      Perceptions
    • 7.
      • Lawyers (BWB)
      • Independent consultants (IVAR)
      • HR – in house/ Croner
      • PR and branding (Public Life)
      Professional Help
    • 8.
      • 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
    • 9.
      • 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
    • 10.
      • DTA-bassac/ bassac-DTA
      • Suggestions ranged from “bastads” to “community matters”!
      • Shortlist of 6
      • (Nearly!) Unanimous support for
      • locality
      What’s in a name?
    • 11.
      • Director of integration
      • Lots of form filling and new signatures needed!
      • Need to things get in the right order
      • Launch – venue, publicity
      Next steps
    • 12. locality.org.uk
    • 13. Part 2 Structures and Legal Considerations Philip Kirkpatrick Co-Head Charities and Social Enterprise Department Bates Wells & Braithwaite London LLP
    • 14. 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
    • 15. Main Collaborative Structures
      • Un-documented joint working
      • Memorandum of understanding
      • Written contract (JANE)
      • Partnership agreement
      • Limited liability partnership
      • Limited company
      • Group structure
      • Federation
    • 16. 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?
    • 17. 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
    • 18. Collaboration Checklist
      • Admission of new partners / members
      • Profit distribution
      • Tax and VAT
      • IP and data ownership / management
      • Liability:
        • contract
        • tort
      • Insurance
      • Dispute resolution
    • 19. Collaboration Checklist
      • Conflicts of interest
      • Data protection
      • Joint ownership problems:
        • land/premises
        • intellectual property
        • other assets
      • Methods/timing of termination
      • Consequences of termination
    • 20. Basic Merger Structures: Asset Transfer 1 A B
    • 21. 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)
    • 22. Basic Structures: Asset Transfer 2 A B C
    • 23. 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?
    • 24. Basic structures: Group 1 B A
    • 25. Basic Structures: Group 2 C A B
    • 26. 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?
    • 27. Basic Structures: Federation F M M M M M M
    • 28. 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
    • 29. Legal Due Diligence
      • Objects and powers
      • Members
      • Structure – corporate / unincorporated?
      • Regulatory support / approval?
      • Contracts / grants
      • Debts
      • Employees and TUPE
      • Pensions
      • Litigation / disputes
    • 30. Legal Due Diligence
      • Properties
        • freeholds / leaseholds
        • restrictions on disposition (s 36 CA 1993)
        • charges
        • condition
      • Permanent endowment / specie land
      • Other special trusts
    • 31. Legal Due Diligence
      • Hire purchase / leased assets
      • Intellectual property
      • Information technology
      • Investments
      • Tax / VAT
      • Trading company
      • Data protection
      • Insurance
      • Other sector specific issues
    • 32. 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?
    • 33. Merger Agreement
      • Conditions
        • consents from / registration with regulators
        • consents from funders / contractors
        • member approval
      • Pre-assignment / novation / consent contract / lease arrangements
      • TUPE
      • Announcements
    • 34. 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

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