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We are often asked what Family Investment Companies (FICs) are and what benefits they bring.

What is a Family Investment Company (FIC)?

A Family Investment Company (FIC) is often used by one generation that wishes to retain control of family assets, whilst providing for future generations to benefit from that wealth.  A ‘FIC’ is a company that can either be a limited or an unlimited company used for estate planning and wealth management.  A bespoke set of articles of association and/or a Shareholders Agreement, together with a tailored share structure, make the company, whether limited or unlimited, suitable to operate as an estate and wealth planning vehicle.

Unlimited or Limited Company?

There are pros and cons for each when choosing to set up a limited or unlimited company.  An unlimited company does not provide the limited liability that many owners seek, however, its main advantage is that it can keep its financial affairs private. A limited company benefits from limiting the personal liability of shareholders, nevertheless, the accounts of a limited company are a public document and will need to be filed at Companies House, which is easily accessible and downloadable by the public. It is important to note that small companies may be eligible for audit exemption if they meet the criteria governed by the Companies Act 2006.

The structure of Family Investment Companies (FICs).

Family Investment Companies offer a different structure in which families can pass wealth on to future generations whilst retaining control over the investments and assets.

Typically, Family Investment Companies will have a mixture of voting shares and non-voting shares, as well as different classes of shares (which allow for different dividends to be distributed to different shareholders). It is important to note that just giving a share a different name is not sufficient to create a different class; the shares must have different entitlements as well. Preference shares and redeemable preference shares are often seen in a Family Investment Company as they provide their holders with a preferential right to income ahead of ordinary shares.  The shares will normally only be owned by family members and family trusts.  The articles of association and/or a Shareholders Agreement can be tailored to the family’s needs.  Articles are publicly available documents held by Companies House, whereas a Shareholders Agreement is a private agreement between the shareholders (and the company).  These will contain provisions regulating the relationship between the shareholders and safeguarding the control of the company and the assets.  Some other provisions may include; appointment and removal of directors, share rights, transfer of shares, dividend policy, valuation of shares, dispute resolution, and compulsory transfer of shares in certain situations.

This structure allows certain family members to maintain control over the assets, while the FIC is growing wealth, in a tax-efficient manner.

Reasons why you may find a Family Investment Company (FIC) useful.

Family Investment Companies can be used instead of, or in addition to, typical estate planning vehicles. When deciding if a Family Investment Company is the right option for your family, it is imperative to obtain clear professional guidance and advice as each family is different with its own specific needs, dynamics, and objectives. Professional tax advice is recommended when considering any form of estate planning

Estate planning is forever evolving and developing. Great care should be taken to ensure the success and future-proofing of your family wealth.

Tollers have significant experience working with independent financial advisors, tax specialists and accountants in the creation and implementation of Family Investment Companies (FICs).

If you would like to discuss Family Investment Companies further… Talk to Tollers on 01604 258858 and our knowledgeable and experienced team will guide you through the process in order that you can choose the right vehicle for your needs.

 

At Tollers we are often asked to design share structures for new shareholders coming into an established business when the new shareholder is not paying for the shares. The existing shareholders do not want to give up the value they have created in the company but would like the new shareholder to benefit from future growth.

Growth shares:

The term “growth shares” is a loose label to describe the structuring of shares to allow a shareholder to benefit only from growth in the value of the company from the time the shares are issued. For example, if the company is currently valued at £1 million, the growth shares would participate in growth above £1 million.

Hurdle shares:

The term “hurdle shares” is used for a share structure where the shareholder benefits from growth in the value of the company above a hurdle which exceeds the current value of the company. For example, if the company is valued at £1m, then the new shareholder would only get the benefit if the valuation was above, say, £2m.

Flowering shares:

The term “flowering shares” is used to describe shares that allow shareholders to participate in the value of the company, if and when a specific condition is met. For example, exceeding a profit target or a sale price on the disposal of the company.

There are three main commercial rights that we normally look at when structuring growth shares: (1) dividends (2) voting (3) rights to the proceeds of sale of the share.

Dividends and voting:

Our team would normally suggest that a new class of shares is created for the company, and these shares are the growth shares such that the original shareholders will hold ordinary shares and the new shareholder will hold ‘A’ shares with different rights attached. One of the main reasons for this is to allow the directors to distribute a different dividend to each class of shares. A separate dividends policy in the Shareholders Agreement will specify the amounts.

Rights on sale of the company:

We normally recommend that the growth shares are entitled to a share of the purchase price once the Ordinary shareholders have received a defined amount (usually the valuate of the company at the point the A shares are issued).

If you need advice or guidance on the best share structure for potential new shareholders…Talk to Tollers on 01604 258558, our Commercial Law team is on hand to assist and guide you through the process of identifying the best share structure for your business.

Shareholder agreements and how we can help.

Non-Fungible Tokens (NTFs) have risen to prominence over recent months although they have been around for some time. The news feeds have included stories about huge sums being paid at auction for digital artworks but NFTs have also been used for digital fashion goods (yes, digital only trainers by Gucci are a thing), trading cards, in connection with the release of new music and the BBC has reported in a recent “Click” broadcast, the funding of new films.

What is not clear to many people is exactly what an NTF is.

An NFT is a publicly verified record of authenticity in relation to the asset it represents. An NFT cannot be replaced or reproduced, as something that is non-fungible is unique. By using NFTs the authenticity of digital assets can be verified and protected.

Ownership of the NFT does not give ownership of the underlying asset. The intellectual property in the underlying asset will remain with the current owner. The terms of ownership of the NFT will be subject to a contract with the owner of the underlying asset which will set out the terms of rights granted – whether to display a piece of artwork, to reproduce it, commercialise it or use it. If considering buying an NFT it is imperative to look into the rights being granted so that you know what you are able to do and what is restricted. This will have a direct impact on the value of the NFT.

A record of ownership of each NFT is stored via a blockchain, which is a type of ledger or database, that is duplicated and distributed across a network of thousands of computers.

The market for NFTs is digital and at present buyer needs to use cryptocurrency for the transaction. This itself leads to issues as the market for cryptocurrency is volatile and a seller may not realise the anticipated value for the NFT. There have been recent reports of UK banks taking months to vet holders of crypto assets before they are allowed to open an account and convert their cryptocurrency into cash due to money laundering and tax concerns.

NFTs remain unregulated at present and it is likely that in future the financial institutions will take heed. There is some suggestion that NFTS should fall within the scope of online trading laws or regulated investments but this has yet to be determined.

If you have any questions about Non-Fungible Tokens (NFTs)…Talk to Tollers on 01604 258558 and ask to speak to our legal specialists in our Corporate and Commercial team who will be happy to help.

More about NFTs…

In 2018 we published an article on the question of whether Software should be categorized as goods or services in the context of The Commercial Agents (Council Directive) Regulations 1993 (as amended) (the Regulations).

The Regulations are the implementation into UK law of the Commercial Agents Directive (86/653/EEC) (the Directive) which provides protections to commercial agents including the right to receive a payment on termination of the agent’s appointment, subject to certain exceptions. The question of whether software is goods or services is important in this context as the Regulations only apply to the sale or purchase of goods. The position of an agent selling or buying software on behalf of a principal was therefore unclear.

In 2018 the Court of Appeal ruled in the case of Computer Associates UK Ltd v Software Incubator Ltd [2018] that intangible software was not goods for the purposes of the Regulations but that in the light of technological advances since the Regulations came into force the distinction between tangible and intangible goods seemed artificial. Software Incubator appealed this decision to the Supreme Court.

As the case came before the Supreme Court before the end of the Brexit transition period and the Regulations are the enactment into British law of the Directive the Supreme Court referred 2 questions to the European Court of Justice (ECJ).

The ECJ delivered its judgment on this matter on 16 September 2021. In its judgment the ECJ ruled that:

On that basis and in line with the ECJ’s existing case-law, the term “goods” was held to mean products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. As a result of this general definition, “goods” can include computer software as computer software has a commercial value and is capable of forming the subject of a commercial transaction.

It was also held that software can be classified as “goods” irrespective of whether it is supplied on a tangible medium or by electronic download.

The concept of “sale of goods” referred to in Article 1(2) of the Directive is therefore to be interpreted as meaning that it can cover the supply, in return for payment of a fee, of computer software to a customer by electronic means where that supply is accompanied by the grant of a perpetual licence to use that software.

In relation to Computer Associates UK Ltd v Software Incubator Ltd the Supreme Court will make its final ruling based upon the decision of the ECJ. Software houses that make use of commercial agents must take note of the ECJ ruling and also the final outcome of the case in the Supreme Court and make provision for future claims under the Regulations by their agents as appointments are terminated or expire.

For the moment it appears that this longstanding query on the status of software has been resolved.

For further advice in relation to commercial agents… Talk to Tollers on 01604 258558 and ask to speak to the specialists in our Corporate and Commercial team who will be happy to help

Is Software Goods Or Services – Tollers Solicitors – Commerical Law

 

 

We are regularly asked about dealing with data in the new world of trading post Brexit, as businesses continue to trade internationally. Whilst data protection compliance has become an important issue for businesses since the advent of GDPR and the Data Protection Act in 2018 there are issues that need to be addressed when dealing with data relating to EU nationals. In this article we look at some of the key questions about transferring or processing personal data internationally.

Following the end of the Brexit transition period can data be transferred from the UK to an EU member state?

Yes. The Data Protection Act 2018 allows for transfers of personal data from the UK to EU and EEA member states.

What about transfers from EEA countries to the UK?

On 28 June 2021 the EU Commission (the Commission) published an adequacy decision which recognises that the UK provides adequate protection for personal data under EU GDPR.  This decision is expected to last until the end of June 2025 but could be withdrawn before this date if the Commission determines that UK data protection law no longer provides an adequate level of protection. Assuming that the adequacy decision is not withdrawn it will be reviewed by the Commission and extended for up to four years.

What if my business involves offering goods or services to individuals in the EU?

If you are based in the UK but do not have an office, branch or other establishment in any of the EU or EEA states then you need to continue to comply with EU GDPR.

EU GDPR imposes an obligation on you to appoint a representative in the EEA. This representative should be set up in an EU or EEA state where some of the individuals that you deal with are located.

The representative could be an individual, a company or another form of organisation established in the EEA.

Are there any exemptions to the requirement to appoint a representative?

Yes there are.

If you are based outside the UK do you need to appoint a UK representative?

If you are based outside of the UK but do not have an office, branch or other establishment in the UK then you need to comply with UK data protection laws including the UK version of GDPR.

If you offer goods and services to UK individuals in the UK or you monitor the behaviour of individuals in the UK then you must appoint a representative in the UK. This representative can be an individual or a company or organisation established in the UK.

Does the representative need written terms of appointment?

Yes they do – whether they are in the UK or in the EEA.

What is the role of the representative?

The role of the representative is to represent you in connection with your data protection responsibilities for example in relation to the exercise of data subject rights and also to be a contact point for data protection authorities in the jurisdictions where data subjects are based.

The representative is required to keep a record of processing activities and this must be provided to relevant data protection authorities on request.

The representative should be identified in your privacy notice or any other information provided by you to the data subjects with reference to data protection.

Is the representative responsible for breaches by the entity that appoints it?

This question was recently considered by the High Court in relation to the UK representative of a US company. In that case the court ruled that the representative cannot be liable for the appointing company’s breaches.

For further advice in relation to data protection and dealing with data in the EU…Talk to Tollers on 01604 258558 and ask to speak to the specialists in our Corporate and Commercial team who will be happy to help and guide you through.

https://www.tollers.co.uk/corporate-law/

Restrictive covenants are included in many different types of agreement including employment, consultancy and partnership agreements, business sale agreements and franchise agreements.

In each case, the restrictions have to be considered in the context of the transaction or agreement to which they relate, but it is always the case that a restriction must protect the legitimate business interests of the party seeking to enforce the restriction (and go no further than that) and they must not conflict with the public interest. What is and what is not enforceable will differ widely between different types of agreement and the courts will always consider the conflict between the freedom to contract and the freedom to trade.

Post-termination restrictions in a franchise agreement have recently been reviewed by the High Court. In that case [Dwyer (UK Franchising) Ltd v Fredbar Ltd], the franchise agreement provided that the franchisee and the owner of that business were not allowed to operate a business similar to or competitive with the franchised business within the exclusive franchise territory (Cardiff) or within a radius of five miles of Cardiff for a period of 12 months after termination of the franchise agreement.

The Judge held that these restrictions would prevent the franchisee and its owner from operating a plumbing and drainage business within Cardiff without exception. This meant that the franchisee could not act as a subcontractor and the owner of the business could not be employed by a plumbing and drainage business. This was found by the court to be unreasonable as it was reasonably foreseeable that the restrictions would increase the risk of the owner being unemployed during the 12 month restricted period with the consequences that may flow from that, including the inability to service the mortgage on his family home.

In relation to the radius of five miles, again the Court found this to be unreasonable as the franchisee had not provided services within that area.

Whilst all cases are judged on their own particular facts, this case serves as a reminder that restrictions must be reasonable to be enforceable and they should always take into account the circumstances of both parties.

For further advice on restrictive covenants… Talk to Tollers on 01604 258558 and speak to the experienced specialists in our Corporate and Commercial team who will be happy to help with all your requirements.

https://en.wikipedia.org/wiki/Covenant_(law)

https://www.tollers.co.uk/legal-services-for-business/

The issue of limitations of liability has recently been reviewed by the courts in Northern Ireland [Kitchen Components Ltd v Jowat (UK) Ltd]. In that case, the court rejected the defendant’s (Jowat’s) attempt to rely on a provision in its standard terms and conditions, which capped Jowat’s liability to the price paid for the goods.

The product in question was adhesive that was used by Kitchen Components Ltd (KC) in the manufacture of kitchen doors. An earlier decision had found that Jowat’s product was inherently defective and was the cause of damage suffered by KC.

Under the Unfair Contract Terms Act 1977 (UCTA) a person cannot exclude or limit liability for negligence unless that contract term satisfies the requirement of reasonableness. The burden is on the party seeking to rely on the contract term (in this case Jowat) to prove that this test is met. In determining reasonableness, regard must be given to the resources of the parties and in particular to the availability of insurance. Jowat did have relevant insurance cover in place.

In this case, Jowat claimed that the product was modestly priced and that any perceived defect in the product could lead to damages which were wholly disproportionate to the value of the product. It was noted by the court that provisions capping liability to the price of the product were standard in the adhesives industry. However, the court found that the clause was not reasonable and awarded substantial damages to KC in respect of the losses that KC had suffered in replacing affected kitchen doors.

In assessing damages, the total cost of the adhesive was recorded as being £251,000. Whilst only 6% of the kitchen doors were affected all of the adhesive supplied was defective and therefore the total purchase price was taken into account and was recoverable by KC. In addition, KC was awarded damages in relation to the replacement and refitting of kitchen doors and the time of customer service and sales staff totalling £642,602.

The analysis of the facts and previous case law by the court in this case, indicate that a limitation of liability to the price paid for goods will rarely satisfy the reasonableness test set out in UCTA unless the goods in question are generic and the supplier is not regarded as having been given notice of the use the buyer intends to make of them. If composition and operation of the goods is within the buyer’s expertise and the buyer is able to obtain insurance to cover the risk then this is likely to render the limitation of liability unreasonable.

This case is a reminder that suppliers need to consider their exclusions and limitations of liability provisions in the context of the goods that they supply and the nature of loss likely to be suffered if those goods are defective. The availability of insurance cover is a key factor.

For further advice…Talk to Tollers on 01604 258558 and ask to speak to the specialists in our commercial contracts team who will be happy to help.

https://www.tollers.co.uk/commercial-law/commercial-contract-law/

 

The Information Commissioner (ICO) has issued guidance on what organisations and businesses need to do if asked to collect contact information for the purposes of the contact tracing scheme.

The requirement is that those in the following sectors (whether they operate indoor or outdoor venues) should collect contact details from staff, customers and visitors:

Collection of personal data is subject to the Data Protection Act 2018.

What are the key points?

Communicate with the data subjects: When collecting data you must be clear open and honest about why the data is being collected, who you will share it with and how long you will keep it. When letting people know you must take into account who you need to communicate the message to so for example when communicating with children and young people make sure that the language used is appropriate to that age group.

What is the lawful basis for collecting the data? You may be aware that in general there needs to be a lawful basis for collecting personal data. In most cases you will be able to rely on the legitimate interest basis as it is in the interests of the individual, the organisation and public health in order to tackle Covid 19 to collect data. For close contact services and places of worship however the ICO states that the consent of the individuals should be obtained. This is because the information you may be asked to share is likely to only relate to a small number of people rather than a crowd.

What data should you collect? You should only collect data that is needed. This includes contact details and the date and time of arrival and (where possible) departure. In England this is only required for one person in a group but the guidance may be different in other nations in the United Kingdom. You should accurately record the information that you are given but there is no need to verify it by checking ID unless you would do this anyway such as when serving alcohol for example.

How should you keep that data? Anyone collecting or processing personal data is required to keep that data safe and secure. This means that you do need to make sure that your staff are aware of what you can and cannot do with the data and who you can share it with; the data should be kept secure – ie not in an accessible and open location; and the data should not be collected in an open access book such as a visitors book where anyone can see the data recorded.

How long should you keep the data for? In general you must not keep data for longer than is necessary for the purpose you collected it. In the case of contact tracing the ICO states that you should keep the data for 21 days and then you should dispose of it securely.

Who can you share the data with? Only with a legitimate Public Health Authority – there are very limited exceptions to this for example the Police as part of a criminal investigation. Be cautious about fraudsters and scammers.

Contact tracers will:
Contact tracers will never:
Can you use the data collected for any other purpose? No.

If you have any questions about your responsibility to collect contact details in connection with the Contact Tracing app or about data protection issues generally…talk to Tollers on 01604 258558 and ask to speak to the commercial contracts team.

https://www.tollers.co.uk/commercial-law/

On 26th June 2020 the Corporate Insolvency and Governance Act 2020 (‘the Act’) came into force. Amongst other issues ‘the Act’ provides that a supplier can no longer simply terminate a contract for the supply of goods or services or, refuse to supply a customer or, amend payment terms for a customer due to the customer’s insolvency.  In addition ‘the Act’ provides that the supplier cannot make it a condition that arrears are paid up to date before they continue to supply the customer in the future.

It is standard practice to include in commercial contracts a right to terminate a contract to supply a customer where the customer has become insolvent or entered into any formal insolvency process. The Act will therefore cause a significant change in contract management and credit control procedures for suppliers.

There are exceptions to the new rules:

A supplier is a “small supplier” if it is not in its first year of trading and at least 2 of the following conditions apply to its most recent financial year:

Condition 1: the supplier’s turnover was not more that £10.2 million.

Condition 2: the supplier’s balance sheet total was not more than £5.1 million.

Condition 3: the supplier had no more than 50 employees on average.

Where the supplier is in its first financial year the definition is varied and the turnover figure will be adjusted proportionately, but its turnover must not exceed £850,000 in that first financial year.

Before taking any credit control measures or enforcement steps suppliers must be mindful of this new legislation.

For further advice and guidance…Talk to Tollers on 01604 258558 and ask to speak to the specialists in our commercial contracts or dispute resolution teams who will be happy to help.

https://www.tollers.co.uk/commercial-law/

There has been a huge amount of commentary on the impact of Covid-19 on commercial contracts since the outset of lockdown including discussions in relation to the application and enforcement of force majeure clauses and the frustration of contracts.

As lockdown restrictions are eased and businesses open up again boards need to consider whether the performance of contracts which were previously suspended due to force majeure must be resumed. If this does not happen the other party is likely to consider what options it has in relation to enforcement of the contract or even possibly termination.

In May the Cabinet Office issued Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency.

This new guidance sets out guidance and recommendations for responsible and fair contractual behaviour in the current climate in an attempt to avoid potential disputes and business should have regard to this. The guidance stresses that good contractual behaviour is important both for jobs and for economic recovery.

So what is meant by fair and responsible contractual behaviour?

  1. Being reasonable and proportionate in responding to issues relating to contractual performance and enforcing contracts; and
  2. Acting in a spirit of cooperation with a view to achieving a practical, just and equitable outcome having regard to the impact on the other party, the availability of financial resources, the protection of public health and the national interest.

The government is strongly encouraging parties to seek to resolve disputes responsibly through the use of negotiation, mediation and other alternative dispute resolution strategies.

This guidance is not law but parties to a contract must consider the impact of the guidance when disputes arise and consideration should be given to how to move forwards. It is not clear at this stage if the courts will take into account whether or not parties have taken the guidance into account but the guidance should be seen as a commercial deterrent to unreasonable behaviour.

For further information about the guidance… talk to Tollers on 01604 258558 and speak to the contracts specialists in our commercial contracts or dispute resolution teams, who will be happy to assist.

https://www.tollers.co.uk/dispute-resolution/

https://www.tollers.co.uk/commercial-law/

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