Agency, Distribution, Franchise and Licence Agreements – what are they?

Do you want to start or expand your business and need advice on which approach is best?

Kuldeep Clair, the most experienced solicitor at Sterling Law, looks at the differences between various types of commercial agreements.

For many companies, considering whether to establish an agency, distribution or franchise relationship, the differences between these expansion models may not always be immediately clear.

Whereas an agent acts as a facilitator for contracts between the business and the customer, distributors buy from the business to sell to their own customers – while franchisees essentially run a near-identical copy of the franchisor’s business in a new location while paying for the right to use the branding and intellectual property.

When looking to expand, it can be difficult to know which approach is the best for your business. In this guide, we will look at what each type of relationship entails, and the legal considerations that come along with them.

What is an Agency Agreement?

An Agency Agreement allows a business (the principal) to gain access to new customers through the services of an agent.

For example, an agent might be sought for their specialist expertise with a certain market (perhaps allowing them to negotiate contracts in a different geographical location on behalf of the principal).

The standard contents of an Agency Agreement generally include:

  • Detailed descriptions of the roles and responsibilities for both the agent and the principal
  • The level of authorisation and autonomy granted to the agent
  • How and when payments are made
  • Rules for protecting sensitive information and/or trade secrets
  • Whether the agent’s rights will be exclusive
  • How the Agreement works with respect to termination or breaches
  • Non-compete clauses (‘restrictive covenants’)

It is important to note that Agency relationships in the UK are subject to the Commercial Agents Regulations of 1993. This means that:

  • Agents have a legal right to have their Agreement in writing
  • The principal must pay the agent a reasonable commission if a fee or percentage was not agreed earlier
  • There are important rules around when commission should be paid (and on which transactions)
  • Minimum notice periods exist for termination of indefinite Agency Agreements
  • Agents have a right to receive either compensation or an indemnity if terminated

Appointing an agent is often a very good and sensible move for a business looking to expand its boundaries without the expense of establishing an additional office and hiring staff in the new location. However, there is a downside in that the principal may end up accepting liability for something the agent does if they overstep their authority or make a mistake.

What is a Distribution Agreement?

In a distribution relationship, a distributor buys goods from the supplier and sells them on to their own customers (adding a margin to the sale price for profit).

The terms of this arrangement will usually be laid out in a Distribution Agreement. These Agreements can come in many forms, but will generally include:

  • Territory – where the distributor can sell the products
  • Provisions about how the distributor can promote products through different channels – including internet sales and promotion
  • Minimum purchase obligations for the distributor
  • Limits on the types of goods the distributor can sell
  • Provisions preventing the distributor from selling competitor products
  • Provisions protecting the supplier’s intellectual property such as trademarks
  • Rules around the prices they will be charged and which they can charge their customers
  • Clauses covering termination and limiting liability

On the face of it, these Agreements may seem somewhat similar to Agency Agreements. However, the distributor relationship is quite different – the distributor deals on their own behalf with the end customer, and no liability or responsibility for their transactions is passed onto the supplier, other than product liability for faulty goods.

There are several different types of Distribution Agreements:

  • Exclusive rights: This means that the distributor will be the only entity permitted to sell the products in their region. The supplier is not allowed to take on other distributors or sell their own products in this location.
  • Sole rights: The supplier can sell their own products in the territory, but is not able to appoint any other distributors.
  • Non-exclusive rights: The distributor can be one of many selling the products in their location, and the supplier can appoint others (as well as seek their own sales).
  • Selective distributorship: This means that the supplier can only appoint more distributors if certain criteria are met.

Unlike terminating an agency relationship, ending a distribution deal doesn’t legally incur any requirement to pay compensation or indemnity. However, the company will generally have less control over the activities of a distributor than it would an agent.

What is a Licence Agreement?

Licence Agreement is a legal contract that sets out the terms of a deal between a licensor and a licensee granting the licensee the right to use certain knowledge and intellectual property rights of a licensor.

This allows the licensee to use intellectual property such as trademarks and know how developed by the Licensor in their business. It allows the Licensor to benefit from passing the knowledge they have developed on to a wider network of businesses. It may or may not include the right to sue certain trademarks and brand assets.

Some of the terms commonly found in Licence Agreements of this type are:

  • Licence fees and royalties
  • Provisions protecting use of trademarks and other intellectual property
  • The duration of the agreement and provisions for termination

What is a Franchise Agreement?

Franchise Agreement is a legal contract which is essentially a more comprehensive form of Licence Agreement that sets out the terms of a deal between a franchisor and a franchisee. Essentially, it grants a franchisee the right to run their own business using the concept and brand assets of a franchisor.

This allows the franchisee to enjoy the advantages of operating under an established brand name, while the franchisor is able to extend the reach of their business and reputation to a new location.

Some of the items commonly found in a Franchise Agreement often include:

  • Franchise fees and royalties
  • The franchisee’s responsibilities towards marketing the business
  • How training will be organised
  • The rules and expectations around ‘trade dress’ (such as use of logos, decor, staff uniforms, and so on).
  • Procurement and supplies – such as whether the franchisee will be expected to buy only from the franchisor, or if they will have autonomy to make their own arrangements
  • Staff and HR policies
  • The duration of the agreement and provisions for termination

There is no specific legislation in the UK to cover franchising, so these agreements are generally governed by contract law, intellectual property legislation, and other areas.

Franchise agreements can be a good way to grow presence for the franchisor’s business in new locations and generate income. However, they may require considerable investment up front for expenses such as market research, financial projections, franchisee operating manuals, and also the cost of preparing the necessary infrastructure to get the franchise operations running effectively (such as establishing strategies for stock management, accounting, tax handling, and so on).

IN SUMMARY:

Many think that franchising and licensing are same, but the fact is that they are different, only the advantages of franchising are similar to those of licensing. The first and foremost difference between licensing and franchising are that the former is mainly associated with the production and marketing of goods while the latter is related to the service business.

While they might be quite different, Agency Agreements, Distribution Agreements, Licence Agreements and Franchise Agreements are all good possibilities when looking to expand your business to a new territory.

Each type of document has its nuances and considerations, but by enlisting expert legal help you can be sure you have the right contract for your needs.

Still quite confused? This is a complex topic. Please contact me for a free initial chat to discuss further on 07484 614090 or kuldeep@sterlinglawyers.co.uk

Kuldeep S. Clair, Solicitor of the Senior Courts of England and Wales

Kingsley Napley Contributes to Significant Law Commission Criminal Justice Reform Project

The Law Commission has today published its long-awaited recommendations for reform of the UK’s post-conviction confiscation regime.

Work on the project began in November 2018, after the Home Office asked the Law Commission to review the regime found in Part 2 of the Proceeds of Crime Act 2002.

After carrying out its initial work, the Commission published a consultation paper in September 2020. Kingsley Napley was asked to contribute at an early stage of the project, and was one of only three solicitors’ firms to provide a formal response to the paper. Partner Nicola Finnerty, legal director Gemma Tombs and associate Alfie Cranmer made up the firm’s working group, drawing on their extensive experience in acting for individuals in confiscation proceedings.

The Commission’s 642-page final report on the project sets out a number of important recommendations with the common goal of improving the efficiency and efficacy of the regime, under the updated statutory headline of “depriving defendants of their benefit from criminal conduct, within the limits of their means.” Kingsley Napley’s contributions to the project have featured widely in the report, which contains recommendations aiming to:

  • speed-up confiscation proceedings by establishing strict timetables for hearings;
  • give courts the power to impose so-called contingent enforcement orders along with making a confiscation order;
  • strengthen the restraint order framework, including by codifying the “risk of dissipation” test;
  • strengthen law enforcement agencies’ responses;
  • update the provisions that factor in a defendant’s criminal lifestyle when assessing their benefit from crime;
  • give greater consideration to the defendant’s ability to pay an order; and
  • create more flexible tools for judges when drawing up orders.

The Law Commission’s full and summary reports can be downloaded from this web page. The consultation paper is available by clicking here and you can read Kingsley Napley’s response to the paper here. You can find out more about our white collar and financial crime practice by clicking here.

Dentons Strengthens UK Corporate Practice with Hire of M&A Partner in London

London—Dentons, the world’s largest global law firm, has hired an M&A partner into its UK Corporate practice.

James Vernon is experienced in both public and private M&A, joint ventures, corporate governance and corporate advisory work. He focuses on premium mid-market work covering international cross-border M&A for major corporates, private equity and institutional investors, and is an expert in public company takeovers. James joins from Eversheds Sutherland where he was a legal director in the corporate department, having previously practised at Freshfields Bruckhaus Deringer.

‘James’ experience of complicated, cross-border deals working with multi-disciplinary teams in multiple jurisdictions aligns exactly with the “Golden Thread” pillar of our five-year strategy, which is about supporting corporates across practice areas, sectors and geographies,’ said UK, Ireland and Middle East CEO Paul Jarvis.

‘Bringing in an experienced M&A partner so early in the year demonstrates the seriousness of our intent to support our clients on their most complex matters, as we anticipate increasing activity for domestic and cross-border M&A at the premium end of the mid-market in the year ahead,’ said Head of UK Corporate Neil Nicholson.

Recent deals for Dentons’ UK Corporate practice include advising:

About Dentons

Dentons is designed to be different. As the world’s largest law firm with 20,000 professionals in over 200 locations in more than 80 countries, we can help you growprotectoperate and finance your business. Our polycentric and purpose-driven approach, together with our commitment to inclusion, diversity, equity and ESG, ensures we challenge the status quo to stay focused on what matters most to you. www.dentons.com

Reasons You Should Hire a Motorcycle Accident Attorney

Many are unaware that motorcycles account for less than five percent of registered vehicles in the country. However, motorcyclists accounted for around fifteen percent of all traffic accident-related fatalities. There are many reasons for such unfortunate incidents, such as car drivers refusing to give way or rash or negligent driving.

Although being in an accident can be catastrophic for victims, there is the hope of getting back to a normal life with the aid of legal experts. That’s because motorcycle accident lawyers can help you file a claim and avail of rightful compensation, helping you get back to everyday life quicker.

The following are undeniable reasons you should hire such experts if you ever find yourself or a loved one in a similar predicament.

  • They can help you file a claim

Personal injury experts can help you file a claim and get fair compensation for your injuries and losses. They can also help seek compensation for medical care, such as rehabilitation or surgery, which is often not possible when people argue their own case without legal knowledge. If you suffer from a severe injury that requires surgery, personal injury attorneys can also help with this process.

Moreover, they can help file claims within the statute of limitations, knowing which laws are applicable and the ones that are not to ensure your case is heard.

  • Expert legal representation

Your case deserves the best representation possible, and it is pivotal that you speak with someone with extensive experience in personal injury cases like yours. A motorcycle accident attorney is an expert in all things related to motor vehicle accidents, including their legal ramifications and damages. They will be able to guide you through negotiations with insurance companies and help file claims for medical costs and lost wages if applicable.

Invariably, they have unmatched expertise in reviewing case law on behalf of clients injured in collisions with other vehicles or motorcycles (and sometimes even pedestrians) and represent clients at trial if necessary.

  • Quicker legal process and favorable outcome

A major advantage of having legal experience and resources on your side is they can help you get the financial assistance you need after a motorcycle accident. These lawyers can also help ensure that your case is filed with the correct and proper paperwork so that it doesn’t fall through the cracks because of lapsed time or document errors on your part.

Furthermore, this increases your chances of a favorable outcome, allowing you to avail of a fair amount of settlement so that you can have a normal life again.

  • Legal assistance to prove liability

Motorcycle accidents often occur because of error or negligence by another party involved in the accident. For these parties to be held accountable for their actions, they must meet specific legal requirements first, such as proving liability. An experienced attorney will know how best to prove liability and help secure compensation after an accident.

They do this by collecting evidence that even the police and other authorities often overlook, helping them prove the other party’s negligence in causing the accident. Ordinary folks are not in the frame of mind to do this by themselves as they are already reeling from the aftermath of the crash.

Find a reputable personal injury law firm

Now that you know motorcycle accident lawyers can help you file a claim, finding a reputable personal injury law firm is the foremost step. These firms have an army of attorneys experienced in cases similar to yours, having earned countless awards and accolades for their unmatched performance. You can check client reviews on their website to understand how competent and reputable they are, allowing you to hire only the very best in the industry. Also, note that reliable ones will offer a free case assessment, enabling you to understand better how well they can represent you and the estimated compensation you can get.

Therefore, pick an experienced firm with thousands of satisfied customers and millions of dollars awarded in compensation due to their efforts.

Hong Kong Proposes Regulations on Crowdfunding Activities

On 19 December 2022, the Hong Kong SAR government published proposals to enhance regulation of crowdfunding activities[1] and launched a three-month public consultation exercise. In this article, we will discuss what crowdfunding is, the existing regulations on fundraising activities, risks of the limitations in the current regime and the proposed measures in respect of crowdfunding.

WHAT IS CROWDFUNDING?

Crowdfunding generally refers to activities conducted by an individual, a group or an organisation for openly appealing to a large number of individuals or organisations to each contribute a small amount of money for a specific fundraising purpose, so that the fundraiser may have sufficient funding to carry out a project, a business or meet a purpose. Crowdfunding has increased considerably due to the use of communications technology and online platforms.

The following are major common types of crowdfunding activities conducted in recent years:

  • Equity or debt crowdfunding: Fund contributors invest in a specific project or business (such as a start-up) in return for equities or debts issued by a company, or profits or income of a collective investment scheme.
  • Peer-to-peer lending: Fund contributors provide unsecured loans through online platforms that match them with borrowers, from which interests are earned.
  • Donation-based crowdfunding: Fund contributors make donations to charitable or non-charitable causes (such as political campaigns, personal or social values) they support to help realise such causes without getting any specific returns.
  • Reward/pre-sale crowdfunding: Fund contributors provide funds to fundraisers to help them develop or produce specific physical goods or services, while receiving in some form the goods or services in return.

EXISTING REGULATIONS OF FUNDRAISING ACTIVITIES

Currently, Hong Kong has regulatory and administrative measures over certain activities that invite contribution of funds from the general public, such as charitable fundraising, non-charitable fundraising activities conducted in public places, and sale of lottery tickets. Also, equity or debt crowdfunding invitations are subject to authorisation from the Securities and Futures Commission of Hong Kong (SFC) unless it fulfils the exemption conditions. Where any peer-to-peer lending amounts to a money-lending business, the statutory licensing regime applies. If the lending platform issues notes or debentures, such instruments may be regarded as “securities” or interests in a collective investment scheme and therefore the platform may be regulated by the SFC.

RISKS OF THE LIMITATIONS IN THE CURRENT REGIME

With the increasing use of technology as well as the diverse nature of crowdfunding nowadays, many aspects of crowdfunding activities are not covered by the existing regulatory regime. For example, donation-based and non-charitable crowdfunding conducted online are not subject to the existing regulatory controls which cover mostly fundraising in public places. Besides, Hong Kong does not have specific regulatory measures over rewards/pre-sale crowdfunding activities, and currently the rights of fund contributors can only depend on whether a valid purchase-and-sale contract exists.

The absence of adequate supervision over such crowdfunding activities may bring about risks to fund contributors, such as:

  • concealment by fundraisers of their identity and/or the arrangements and purposes of the crowdfunding
  • losses to fund contributors if the fundraising platform suddenly ceases operation
  • lack of protection to safeguard personal and financial data submitted by fund contributors
  • inaccurate information and descriptions provided by fundraisers resulting in losses to fund contributors
  • fundraising outcome not being in line with purported purpose
  • funds being used on illegal purposes, such as to endanger national security or to support terrorist activities

PROPOSED MEASURES TO REGULATE CROWDFUNDING ACTIVITIES

The government’s key proposed measures include:

  • A Crowdfunding Affairs Office (CAO) will be set up to centrally process and coordinate regulatory and administrative matters related to crowdfunding activities.
  • All fundraising activities, online or offline, that raise funds “publicly” from individuals or entities of Hong Kong, or individuals or entities located in Hong Kong, are required to apply in advance to the CAO, regardless of their purpose or location of the activities.
  • When processing applications, the CAO will consider factors including the honesty, reputation and reliability of the applicant; proportionality of the purpose of the crowdfunding activity to its scale; as well as risks brought about by the activity to public interests, public safety and national security.
  • The CAO will co-ordinate with relevant government departments with a view to streamlining procedures for fundraising activities which are subject to the existing regulation, such as donation invitations held physically in public places, or lottery sales.
  • The new regulatory regime will not apply to commercial fundraising activities in the market which are already well regulated by financial regulators (including the SFC) under existing legislation.
  • Exemptions and facilitation measures are proposed to facilitate smooth operation and timely commencement of crowdfunding activities which are widely recognised by the society and charitable crowdfunding projects which address sudden and urgent needs such as in a natural disaster. Certain activities will be excluded, including call for donations from religious bodies on religious grounds.
  • Fundraisers are required to disclose objectives and arrangements of their crowdfunding activities, use bank account in Hong Kong, keep proper records of fund movements, and obtain information on fund contributors’ identities.
  • Public views are invited to consider whether a registration system for online crowdfunding platforms should be established and the operational practicality of such system given that many platforms are set up outside Hong Kong.
  • Law enforcement agencies will be empowered to cease unlawful crowdfunding activities (such as the issue of prohibition orders) and prosecute offenders.

KEY TAKEAWAY 

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Note: This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice for any cases. Should you need further information or legal advice, please contact us.

[1] https://www.fstb.gov.hk/fsb/en/publication/consult/doc/Crowdfunding_consultation_paper_Eng_final.pdf

DLA Piper Leads Global M&A for 13th Consecutive Year

For the 13th consecutive year, DLA Piper is the highest-ranked legal advisor in the world for M&A deal volume, according to Mergermarket’s league tables. The firm was involved in 1,131 transactions worldwide in 2022, valued at approximately US$137.6 billion.

Contributing to this market leading success and further supporting its reputation, DLA Piper received top rankings in the Mergermarket league tables for deal count in a number of regions and countries worldwide, including:

  • #1 in Europe for the tenth consecutive year
  • #1 UK for the thirteenth consecutive year
  • #1 in Benelux
  • #1 in the Nordics for the sixth consecutive year
  • #1 in Denmark for the fifth consecutive year
  • #2 in Sweden
  • #3 in Central and Eastern Europe
  • #3 in Middle East & Africa
  • #3 in Finland
  • #3 in Poland
  • #4 in the United States
  • #4 in the Americas
  • #4 in Germany, Austria and Switzerland
  • #4 in Asia Pacific (excl. Japan)
  • #4 in Australasia

Ben Parameswaran, global co-chair of DLA Piper’s Corporate practice, said: “Our clients have remained resilient in the face of unsettled worldwide economic conditions throughout 2022, and the sheer volume of deals that we work on gives us unrivaled market insight with which to help them navigate these uncertain waters. Of course, none of this is achievable without the outstanding performance and contribution from our lawyers and their support. I would like to take this opportunity to thank them all for their continued efforts as we continue to strive for the highest levels of client service, in whatever part of the world they do business.”

“This recognition is an acknowledgement of the client-centric mindset shared by our M&A lawyers around the world,” said Kathleen Ruhland, global co-chair of DLA Piper’s Corporate practice. “We are proud to be a trusted and collaborative advisor to our clients, and we know our track record as one of the highest-ranked legal advisors in the world for M&A deal volume would not be possible without the trust they place in us.”

“This is the thirteenth-consecutive year we have been ranked number one by deal count globally and is certainly a testament to the strength of the firm’s M&A team and our commitment to providing exceptional results for our clients,” added Andrew Gilbert, chair of DLA Piper’s US Corporate practice.

Mergermarket also recognized DLA Piper for the following:

  • #1 in South East Asia for deal value, entering the table for the first time
  • #1 in Europe for Private Equity exits, by deal count
  • #2 in Europe for Private Equity buyouts, by deal count

Fast Interface for New Issuance (FINI) for Hong Kong IPO Settlement

Currently, in a typical Hong Kong IPO, five business days (commonly known as “T+5”) are required on average from pricing (“T” day) to settlement of new shares for trading on the Stock Exchange of Hong Kong (Exchange).

Background

Compared with other major listing venues that allow newly listed shares to trade on “T+1”, this is uncompetitive. The existing lengthy settlement process exposes both investors and issuers to market risk that might influence the pricing of the IPO. Further, in a mega IPO, the accumulation of subscription monies with the receiving banks may even result in short-term liquidity shortage or interbank borrowing rate rises during the settlement period.

Features of FINI

The Exchange is shortening this process to “T+2” by adopting the platform of Fast Interface for New Issuance (FINI) as the mandatory settlement mechanism of all future Hong Kong IPOs. After FINI is adopted, a typical Hong Kong IPO timetable will carry the following key dates:

T-5: initiation of offering
T-4 to T-1 12:00: public offer subscription period
T-1 by 17:30: public offer funding confirmation
T 00:00: allocation adjustments
T: pricing
T by 17:30: public offer money settlement
T+1 by 10:00: submission of placee list for the placing tranche to regulators (fully digitalized with introduction of FINI)
T+1 by 17:00: regulatory clearance by the Securities and Futures Commission and the Exchange
T+1 by 23:00: allotment results announcement to be made by the issuer
T+2 09:00: trading commences

In terms of timing, market-wide testing will be conducted from February to June 2023, with the view to launching FINI in June 2023.[1]

For the convenience of market participants and the alignment of primary and secondary market standards, the Exchange will align the investor identification requirements for all IPO subscribers with those set out in the new investor identification regime at the trading level for the securities market in Hong Kong (please refer to our prior article for more details on such regime[2]).

Through FINI, IPO sponsors, underwriters, brokers, distributors, share registrars as well as regulators will use the new digital platform to perform their IPO settlement duties during the offer initiation, share subscription, pricing, allotment, payment, regulatory approval and stock admission processes.

Public comments

Interestingly, several brokers’ associations indicated that FINI may reduce affect their revenues, especially those related to interest income on IPO margin lending, resulting from the shorter settlement cycle for both the public and placing tranches. This phenomenon is acknowledged by the Exchange.[3]

However, practitioners recognize that FINI may offer larger benefits to the market as a whole due to the less exposure to market risk, faster recycling of “locked-up” IPO subscription monies, reduction in borrowing costs to investors and better real-time information. Thus, FINI has earned wide support.

First published on 21 December 2022 on LC Lawyers LLP website

Note: This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice for any cases. Should you need further information or legal advice, please contact us.

[1] https://www.hkex.com.hk/Services/Platform-Services/Project-Fini?sc_lang=en

[2] https://www.eylaw.com.hk/en_hk/publications/our-latest-thinking/2022/september/sfc-investor-idn-regime

[3] https://www.hkex.com.hk/-/media/HKEX-Market/Services/Next-Generation-Post-Trade-Programme/Fini/FINI-Conclusions-Paper-EN-(6-July-2021).pdf

Amended Hong Kong Listing Rules on Share Schemes

Issued in July 2022, Hong Kong Stock Exchange’s conclusions to the earlier consultation on the amended listing rules regarding share schemes have been issued by the exchange following consultation. This article summarises the amendments that become effective on 1 January 2023.

TYPES OF SCHEMES

Listed companies often incentivise employees and other eligible participants by non-cash means, including being linked to the value of company shares. Common types of share-based incentive schemes include:

  1. The company may grant options to participants for subscribing for new shares at a conversion price. If the market price of the shares rises above the conversion price, the participants may exercise those share options by paying the conversion price, and profit from the share price appreciation. The existing listing rules have a specific chapter governing share option schemes, including the conversion price – which has to be fixed at the market price level of the grant time – and the maximum amount of options subject to the scheme.
  2. Another type is a share award scheme, where the listed company purchases existing shares from the open market with its own money, and makes grants to participants who may or may not be required to pay for the shares.
  3. In recent years, more companies have set up share award schemes issuing new shares to participants.

The stock exchange realises the increasing popularity of types (2) and (3) of share schemes, and has decided to include them in the amended listing rules.

SCHEME MANDATE

The mandate limit for all schemes together must not exceed 10% of the shares in issue. The limit can be refreshed after three years from shareholders’ approval of the scheme, or the last refreshment. The purpose is to control the dilutive effect of the schemes. Nevertheless, the stock exchange may grant a waiver to this 10% limit on a case-by-case basis, such as the listed company having a strategy to make large share grants to recruit or incentivise talent.

ELIGIBLE PARTICIPANTS

Share option schemes were supposed to reward officers and employees, but many listed companies have made grants to others including officers of their controlling shareholders and certain service providers. This wide diversity of participation aroused concerns of unjustified dilution to shareholders and conflicts of interest.

The amended listing rules require share schemes to have only three types of eligible participants, namely:

  1. Employee participants, being directors and employees of the listed company and its subsidiaries;
  2. Related entity participants, being directors and employees of the listed company’s holding companies, fellow subsidiaries and associated companies; and
  3. Service providers who provide services to the listed group on a continuing or recurring basis. They may be independent contracts where the continuity and frequency of their services are akin to those of employees. Placing agents and financial advisers providing advisory services for fundraising or mergers and acquisitions are ineligible, and so are auditors and valuers who provide assurance or services with impartiality and objectivity.

MINIMUM VESTING PERIOD

The listing rules will expect that each participant may only fully exercise the share options or obtain the shares after at least 12 months following the grants. However, grants to employee participants may be made with a shorter vesting period under specific circumstances set out in the scheme rules. This exception is not allowed for related entity participants or service providers.

PERFORMANCE AND CLAWBACK

Scheme rules will be required to describe the performance targets (if any) attached to options or awards, and to disclose the clawback mechanism (if any) to recover or withhold any awards or options granted. Where grants are made without performance targets and/or clawback mechanism, the board of directors or its remuneration committee must provide their views on the reasons for making such grants.

OTHER AMENDMENTS

Shareholders’ approval is required if a grant is made to:

  1. An individual participant in excess of 1% of the shares in issue;
  2. A director (other than an independent non-executive director) or the chief executive of the listed company of awards which will result in shares issued (and to be issued) in all awards granted in the 12-month period representing more than 0.1% of the shares in issue; or
  3. An independent non-executive director, or a substantial shareholder of the listed company of awards or options, which will result in the shares issued (and to be issued) in all awards and options granted in the 12-month period representing more than 0.1% of the shares in issue.

When a grant is made, the listed company must make an announcement. Disclosure must be made on an individual basis for:

  1. A connected person;
  2. A participant with grants in excess of the 1% individual Limit; and
  3. A related entity participant or service provider with grants in excess of the above-mentioned 0.1% threshold;

The amendments include disclosure requirements in the listed company’s annual and interim reports, and the work performed by the remuneration committee in the corporate governance report.

IMPLEMENTATION

The amended listing rules will become effective on 1 January 2023. Any share scheme to be adopted from this effective day onward must comply with the new rules. Grants may be made from that day under the pre-existing schemes, but only to the three types of eligible participants.

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First published in October issue 2022 of China Business Law Journal.

Note: This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice for any cases. Should you need further information or legal advice, please contact us.

The Evolution of Best Practice within Private Client Services

Craig Matthews, Director of Lifetime Planning at LEAP Legal Software, explores how Private Client lawyers are re-thinking their approach and actively evaluating the effectiveness of their technology solutions.

Over the past twenty years technology has changed the way in which legal professionals practise law. One area of law that has been rather overlooked by technology until now is private client work. Recent global events and a shift in client expectations, fuelled by an ever-diverse client base with increasingly complex requirements, has driven Private Client lawyers to re-think their approach and actively evaluate the effectiveness of their technology solutions.

With a clientele normally in the latter part of their lives, the provision of Private Client services has traditionally involved face-to-face meetings and written letters and forms sent in the post. Some clients already expect a digital first service and this expectation will grow over the next few years as the 45+ year olds of today become the 55+ year olds of tomorrow. A law firm’s Private Client service offering now needs to be able to cope with everything from the most manual of processes, for those clients who still prefer it the old way, to the most online digital journey imaginable allowed under current legislation.

While the expectation of an older clientele instructing firms for wills, trusts and LPAs today may be met, executors who have instructed law firms to administer an estate or obtain a grant of probate are likely to be more youthful and accordingly will have different and more demanding expectations.

Client expectations are changing quickly. The world we live in today is very different from the one we lived in just a few years ago. Even before the pandemic, when compared to developments in previous generations, it’s clear to see that technology has accelerated change dramatically and has influenced almost every aspect of what we do.

Society’s acceptance of cohabiting relationships, blended families, the LBGTQ+ movement and same-sex relationships allows expression of choice and demonstration of individual freedoms. What this does not provide is security under intestacy law which favours marriage, civil partnership, and then direct family lineage. A common misapprehension is that many people are convinced that having lived with someone for so long or having had children together voids any requirement for a will, whereas very often those key events provide the exact reason for making or updating a will. How this message is communicated to the “modern family” requires a new way of thinking and a joined-up marketing approach spanning a law firm’s business and technology platforms.

While the papers in an asset portfolio of today may look like those compiled ten years previously, it is what is not on paper that really highlights the technology differences of today. Challenger banks offer an entirely paperless experience and digital assets and crypto currencies are a few of many assets that can be owned with no tangible evidence or paper trail. Unless sufficient succession planning is in place including how wallets, keys and passcodes can be left and recovered, it is conceivable that these valuable assets could be overlooked when an estate is distributed, putting solicitors and executors at risk and causing beneficiaries to lose out.

Evolving personal and societal perceptions and behaviours, together with the changing nature of assets and estate valuation, are creating new considerations. The advice that is required to properly inform someone of how best to plan for their lifetime and beyond is changing too.

It is likely that a combination of advice from IFAs, accountants and solicitors will be needed for clients to be properly informed and their estate properly cared for. For law firms, establishing processes and protocols, backed up by best practice technology, understanding where clients should be referred to for further advice, and having a trusted network of advisors so that clients will receive the best advice, could soon become a standard part of a firm’s modus operandi. Lifetime planning advice may well come from different professions but will always require a law firm to enact certain elements.

Law firms whose solicitors provide a “trusted advisor” service, able to optimise both analogue and digital services using effective technology solutions, and who are pivotal in the lifetime planning process, will be the ones who benefit from repeat business beyond just the updating of wills and who will thrive in the digital world of the future.

For more information, please visit www.leap.co.uk.

Photo via Pixabay.

Picking Up the Pieces: The Corporate Carve-Out Opportunity

In an article for Middle Market Growth, White & Case partner Germaine Gurr examines corporate carve-outs and the two-step approach that a parent organization should take when it considers selling a business unit or other asset.

Gurr notes, “The initial step is identifying the assets that the company is looking to divest, and then specifically identifying where those assets are located. You need to figure out how they are connected to the business that is going to be left behind and what is the most efficient way, for tax and other reasons, to remove it as a separate business that can be sold.”

“Once a deal is underway there will be overlapping considerations across accounting, IT, tax, finance and legal that can add complexity. It’s critical that sellers understand and communicate these issues and how they intersect to give the buyer a full picture of what it’s purchasing.”

She adds, “Coming across as really understanding the business you are carving out and addressing any interconnected issues will be key to giving the buyer the comfort that this business, that was part of a larger entity, can function on a standalone basis, either shortly after the acquisition or immediately after it, and there are no additional costs they are going to have to foot to make it a standalone business.”

See the full article here.

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