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Making the Most of Merger
Stephanie BidenPartner, Charity & Social Enterprise Department
Carolyn MillerConsultant
15 May 2014
Why Merge?
• Survival: financial/governance
• Response to commissioning and contracting or funding bodies
• Meet beneficiaries’ needs better
• Greater influence
• Expand range of services
• History of collaboration
Other ways to collaborate
• Spectrum of choices: Collaborative working on issues/projects
Sharing knowledge
Joint venture contract or new entity
Shared services
Full merger
Three Key Stages to Merger
1. Groundwork Compatibility
Heads of terms/confidentiality agreement
2. Due Diligence Financial/legal/operational/cultural
3. Completion Merger agreement
Practicalities (pre and post)
Issues with 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)
Issues with Asset Transfer 2
• Same issues as Asset Transfer 1, except: Feels less like a takeover
More expensive
Issues with Groups
• Tighter than mere contract arrangements
• Cheaper to establish
• No transfer of liability
• More complex governance and management
• Easier to persuade boards?
• Useful stepping stone?
• Reversible
• Does it solve financial problems?
Compatibility
• Identify values beneficiaries objects values or mission statements policies
• Future management and governance• Consultation• Trust• Name/brand/identity
Due Diligence: key legal issues
• Constitutional Objects
Powers
Members
• Structural
Corporate/unincorporated
Due diligence: staff/pensions
• TUPE• New staff structure?• The new CEO?• Pensions
Defined benefit pension schemes Deal breaker?
Due Diligence: Contracts/funding arrangements
• Contract of funding agreement
• Consent (funding agreements)
• Assignment v novation (contracts)
• Risk – value?
• Third party suppliers
Due diligence: Land
• Freehold/leasehold property Restrictions on disposition
Charges
Condition
• Permanent endowment
• Other special trusts
Due diligence: Intellectual property and data
• Intellectual property (IP) Brands, publications, databases
• Data protection Personal data
Consent
Due diligence: other issues
• Litigation/disputes• Insurance• Information technology• Trading company• Investments• Tax/VAT
Due Diligence: Regulators
• Charity Commission/OSCR• Homes and Communities Agency• Pensions Regulator• Care Quality Commission• Other sector specific
Merger Agreement
• Warranties and indemnities Purpose? To focus the mind? Importance of due diligence process
• Conditions Regulators – consents/registration Consents from funders/contractors Member approval
• Pre-assignment/novation/consent• TUPE• Announcements
Post Merger
• Notifications Banks Contractors Regulators Register of charity mergers?
• Final accounts• Winding up/striking off (NB Legacies)
Tips for Success
• Shared vision• Strategic and organisational fit• Business case• Leadership• Recognising human factors• Good communications• Identifying deal breakers• Clear plans for merger process and beyond• Sensitivity to different organisational cultures
See: IVAR – “Thinking about… merger”
Stephanie Biden, [email protected]: 020 7551 7750 @StephanieBiden
Carolyn Miller, [email protected]: 07780 678 346