Newsletter & Bids 4 2016
A warm welcome to you all to this week 4 of 2016, Bids, Grants and Funds from EEVT Ltd and Elephant in a room with thanks to SLIC International Ltd and EEVT Ltd. This week’s bids attachment has only some 34 plus pages this week. Welcome to the new 8 members this week. So we go out to some 4,266 people and organisations this week.
Aimed at professionals who need a comprehensive update, practical examples and opportunity to get ready for change, our March CPD Workshops: Best Practice in Assessment for New Apprenticeships provides hands-on opportunity to continue preparations for implementation alongside like-minded professionals. On the basis of regulatory guidance, Trailblazer discussions and Assessment Organisation plans, we will examine implications for practitioners in clear and simple terms. Based on the gap between the assessor, IQA and EQA awards and performance demands of New Apprenticeships we’ll help you understand what and where to get the skills to help you stay ahead. Join us in an interactive, informative no-nonsense session facilitated by the developers of the assessor, quality assurance and TAQA awards. CPD Certificates and information on BestAssessor.com membership available on request. Limited number of early bird tickets available (£175.27 instead of £221.20) CPD -To Book: click on the relevant link below
or visit our webpage http://www.bestassessor.com/book-cpd-workshops/ to book securely through Eventbrite.
Ok next well done to the 21 organisations that went for ROTO with us most have the pass achieved but a few await the second part which will be out next week for Capacity and Capability so we had 1 out of the 22 that failed which is a great 99.78 achievement.
The following has been passed to me: We are a London Training Provider, Outstanding on ROTO, we are working with 2 prime at the moment. We have about 25-30 PC, 6 big training rooms, 1 big admin room with a small office, server room and Kitchen, toilet. All training rooms are equipped with projectors and white boards. We have 4 year lease which is renewable, our lease is very good value its £16,000.00 + service charges, monthly will be about £1,333.00 for rent and £276.00 for service charges. We are on the main road and have our own separate entrance; we have 4 car park spaces available.
We currently have 32 learners on courses at present and is very good value for the buyer as we willing to pass them on without any charge. We currently have 25 learners on the 24+ loans with prime 1 and this works out as 25 x £2573 = £64 325
We have 7 learners on the 24+ loans with Prime 2 which works out as £18,011.00
In total gain £82,336.00 once they take over. If you have an interest e-mail Steve
Building a profitable business from scratch takes years of hard work, sacrifice and a fair dose of good luck. So for many aspiring business owners, the idea of buying a business – tapping an existing customer base, a ready-to-go workforce, supplier contracts and intellectual property – makes a lot of sense.
But it’s also a complicated process with many potential pitfalls. From picking the right deal structure, running due diligence to negotiating warranties, there’s a lot at stake and mistakes can be very costly.
In this article, we take a look at legal documents you’ll need and the main issues involved when buying a business in the UK.
- An Asset or a Share Purchase?
The difference here is fundamental, as it dictates everything that follows.
Here’s a quick summary:
If you’re buying a sole trader or partnership, your only option is to buy the assets, because there are no shares to buy. If it’s a company, you’ve got a choice: either buy the assets from the company itself or the shares from the individual shareholders of the company.
As a buyer, you’ll typically want to buy the assets so you can cherry-pick the ones you want, and (with a few exceptions) leave the liabilities behind. On the flipside, sellers generally prefer to sell their shares so they can get a clean break from the business (including most liabilities), subject to any warranties and indemnities you can get from them.
The decision to buy assets or share is a big one, and will depend on the type of business you’re buying, the circumstances surrounding the deal, any unique contracts or licences the business might have, tax considerations and more. It should be one of first decisions you negotiate and agree with the seller. To change the structure mid-way through the deal will likely cost you a small fortune in extra legals.
But before we get into the details of the asset / share purchase agreement, there are a few preliminary docs that come into play:
- Preliminary Documents
Sellers will typically want to keep the sale confidential from clients and staff (and other third parties). Plus if the deal falls over, the seller won’t want their company details out in the open and you won’t want your buying intentions made public. The confidentiality clauses can go in a separate document, or can be wrapped up in a…
Heads of Agreement: The main terms of your deal are typically laid out in a framework document, called a Heads of Agreement (AKA Heads of Terms). It normally has a clause saying it’s “subject to contract” which means it doesn’t bind either party, apart from any ‘exclusivity period’ that a seller might offer you. Although it’s supposed to be an outline, it will still be quite detailed, covering everything from price, premises, IP, warranties and indemnities, earn-outs, conditions for completion and more.
Due Diligence Questionnaire
Due diligence is the process of investigating the target business to make sure that the information the buyer gives you is accurate and there are no hidden problems. It’s especially important for share purchases because you’ll be taking the company “warts and all”.
By this point, you’ll want your advisors (accountant, lawyer etc.) on board to tell you what to ask for (via a ‘due diligence questionnaire’) and then pore over the answers that come back – there may be a tonne of paperwork to get through! Your lawyer will then use the responses when drafting your asset / share purchase agreement and create specific clauses to deal with any risks or problems unearthed during due diligence.
Now it’s time for the main transaction document – the asset / share purchase agreement. Remember if you’re buying a sole trader or partnership, or if you’ve structured the deal to buy only the assets of a company, then you’ll use an asset purchase agreement.
- Asset Purchase Agreement
As the buyer, your lawyer will generally prepare the first cut. It should describe exactly which assets are being bought, such as machinery, stock, customer/supplier contracts, premises and intellectual property. You’ll also list out the assets that are not being purchased.
Standard asset purchase agreement will also generally cover:
Stock – list out and value all current stock, then do a stock take on or after completion to make final adjustments to the purchase price.
Plant and Machinery – list out all plant and machinery – hopefully the seller will have a full asset register, plus copies of hire purchase or lease agreements.
Goodwill – this is the premium over the book value of the business, which typically represents things like the value of the brand, customer base and IP.
Creditors/debtors – the seller will generally remain on the hook for creditors until the completion date, and retain debtor payments.
Employees – if you’re buying the business as a ‘going concern’ then the employees will usually be transferred automatically under the TUPE legislation. Both parties should get detailed advice on this because the financial consequences can be significant.
Contracts – all contracts and agreements should have been identified and reviewed during due diligence. You’ll list out those documents and add any specific clauses to protect yourself against potential liabilities found in those contracts.
Warranties – these are a series of contractual statements made by the seller about the business as at the time of completion. They are particularly important (and long!) in share purchases, which we’ll cover below.
Assignment deeds – if you want to take over hire purchase or leasing contracts, you might need both formal consents and signatures from the hire purchase/leasing company before they can be moved across (i.e. ‘assigned’) to you.
These will be dealt with in separate documents called ‘assignment deeds’. Intellectual property rights such as trademarks or patents will similarly need formal assignment or transfer documents so you can take legal ownership of these rights.
Where business premises are involved in the purchase, you’ll also need:
Transfer document – this is a formal transfer document that will be needed, like in any other conveyance.
Landlord consents – if the business premises are being leased, you’ll need the landlord’s consent (at your expense) to get the lease transferred or assigned to you. This really increases the complexity of the transaction and can soak up a lot of time or even completely derail the deal.
Personal Guarantees – the landlord may require you (and your directors if relevant) to give personal guarantees or other security as condition to getting their consent.
Licence for early possession – the seller might give you a temporary licence to occupy the premises, on the understanding that you’ll both do your best to get the landlord’s consent as soon as possible after completion.
Now let’s look a purchase of company shares.
- Share Purchase Agreement
If the deal is structured as a purchase of company shares, the main document you’ll negotiate is a share purchase agreement. Because you’re buying the underlying company shares, you’re in effect taking on all the assets and liabilities of the company.
As the buyer, you’ll again be expected come up with the first draft. The main things you’ll need to cover include:
These are a long series of clauses that act like statements made by the seller as at the time of completion. As an example, that the seller legally owns and possesses the company assets or that company isn’t about to be sued etc. They’re supposed to be comprehensive, so expect them to run over many pages. A lot of warranties are boilerplate (like the above examples), but where they really add value is when they deal directly with issues discovered during the due diligence process.
The trick will be to balance your need to have a comprehensive set of warranties in place, while being reasonable in terms of both the number and scope of the warranties. These will be heavily negotiated and you’ll rely heavily on having a good lawyer on board for these.
Limitation of liability
The seller will usually also want to include some clauses that limit their liability in terms of both the amount of liability (i.e. a capped amount) and for how long they remain on the hook for any breach of a warranty.
If your due diligence reveals any potentially serious problems, you’ll want to include an indemnity to deal with each issue. An indemnity is a specific type of clause that offers more powerful recourse than a warranty. Again, you’ll want sharp negotiation skills for these.
In certain cases, you might want to prevent the seller from competing with you for a set period using a non-compete clause, which is a type of ‘restrictive covenant’ in legal speak.
There also a few other documents you’ll need for a share purchase:
In response to the warranties you’re seeking, the seller (and their lawyers) will carry out a ‘disclosure’ exercise. The end result will be a disclosure letter, which records any exceptions or qualifications to the warranties, instead of changing the actual text of the warranties in the share purchase agreement.
To protect yourself against any surprise tax liabilities, you’ll also seek a separate tax indemnity from the buyer. This will allow you to be reimbursed if you later find out that there is unpaid or undisclosed tax owing for a period when the seller owned the company.
- Completion Documents
For asset purchases, you’ll need to tick off a lot of practical things, such as VAT registration, payroll, PAYE, national insurance, building and contents insurance etc. – a completion agenda will help you keep track.
If you’re buying company shares, you’ll need to write up board minutes for the share transfer and any other formalities.
Also this week the head of OFSTED Sir Michael made the comments during a speech on January 19th for think tank Centre Forum, which also criticised the sector for offering “uniformly weak” careers advice, this has been widely reported through many mediums.
Then 12 members of the Policy Forum, which is described on its website as a group of “experienced people with strong and varied track records in Further Education and skills”, sent a letter. In the letter sent to Sir Michael on January 22nd.
Also many leaders of organisations such as the Association of Colleges (AoC), Holex, the Association of School and College Leaders (ASCL), and the University and College Union (UCU) had issued strongly worded statements defending the sector against Mr Wilshaw’s scathing claims.
The things he has said contradict the Ofsted official report and many are asking does he read his own report also do they know what their data tells them.
A very good question which needs answering we think.
Many thanks to all at the TWIN Group, Pathways Group, Appretices4 England also Successful Mums.
Tip of the week I: A 5-star break in Lisbon for three nights is £179 with flights from Manchester. Details
Tip of the week 2: A stay for two at a 16th century hotel in Winchester is £99. Deal includes full English breakfast and 2-course à la carte dinner. Details http://www.travelzoo.com/uk/hotel-booking/4530
Tip of the week 3: Get three Odeon cinema tickets for £12. Details
Well that’s all for this week from me Steve and the Team
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