BRIEFING STARTING A NEW BUSINESS: KEY CONSIDERATIONS COMMERCIAL

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1 BRIEFING COMMERCIAL STARTING A NEW BUSINESS: KEY CONSIDERATIONS February 2015 If you want to start a successful business you need two things. First you need a great idea. That s your department. Then you need a corporate structure which will enable your idea to become a reality. That s where we come in. Hollie Gallagher (Partner) T +44 (0) E Youichi Iisaka (Solicitor) T +44 (0) E The following is a list of key points to consider when establishing the corporate structure of your new business. STRUCTURE It is important to find the most efficient structure for your business. The majority of new businesses choose to be private limited companies. This means that a company is formed which has a separate legal identity from the owner. This provides the advantage of limiting the owner s personal liability to creditors and other third parties to the amount he has paid for his shares (which in many cases might be just a few pounds). It is the company (and not the owner) who is contracting with suppliers and, therefore, it is the company which is liable for the debts and other obligations entered into during the course of the business. As this is the most popular business structure, this note will focus on the key considerations for businesses which are private companies. However, it is worth noting alternative business structures: Sole Traders: meaning that the owner does not create a separate legal entity. Instead he or she trades through his own name (eg Mr David Jones). As the business is not a separate legal entity, there is no limitation of liability. Mr Jones will be personally liable for any debts or obligations owed to creditors or third parties. Partnerships: meaning an arrangement between two or more individuals who enter into a venture intending to make a profit. A partnership arises automatically in law in these circumstances. There should ideally be an agreement between the partners setting out the roles and responsibilities of each partner. In the absence of such an agreement, the law will impose default provisions on the partners, such as a duty to contribute equally to any losses of the business, and a right to receive profits equally. As with a sole trader, a Bircham Dyson Bell LLP Broadway London SW1H 0BL

2 2February IF YOU DO NOT HAVE ENOUGH CAPITAL FROM YOUR OWN RESOURCES THEN YOU WILL NEED TO CONSIDER OTHER WAYS OF RAISING CASH... partnership is not a separate legal entity. This means each partner owns an interest in every partnership asset, and each partner can be liable for debts and other obligations. Limited Liability Partnership (LLP): in a sense this is a halfway house between a partnership and a limited liability company, sharing certain characteristics of each. As the name suggests, the members of an LLP have their liability to third parties limited, but unlike with a partnership, there are certain reporting requirements to be complied with, such as an obligation to file annual accounts at Companies House. FINANCE - DEBT OR EQUITY FUNDING? What are the start-up costs (capital and operational expenditure)associated with your new business and how will you fund them? How much working capital does your business need for the next 12 to 18 months and how will this be financed? These are two important questions which should be addressed from the outset. If you do not have enough capital from your own resources then you will need to consider other ways of raising cash. There are various methods, including:

3 ...IF YOUR BUSINESS HAS TWO OR MORE SHAREHOLDERS THEN YOU SHOULD CONSIDER ENTERING INTO A SHAREHOLDERS AGREEMENT... debt funding (a loan from a bank); equity funding (selling shares in your company); and Government funding (which would be available only in certain circumstances, hence is not discussed further in this note). If you are raising cash by debt or equity funding, then it will probably be essential for you to prepare a business plan which contains projections for the next 12 to 18 months. This plan may cover matters such as: your target market and an explanation as to how the business intends to reach it; who your competitors are and how your product or service is different to that of your competitors; the costs of setting up the business and how the business will obtain the necessary finance to meet such costs; how the business will be managed; details as to where the business will be carried on and in particular what property will be required; how you will protect your intellectual property rights: budget and projected cash flow; details as to employee requirements and how they will be recruited; and how the business will obtain any necessary licences or third party intellectual property rights. A bank or a prospective investor will want to be clear about how its funds are going to be used in the business. BANK FUNDING If you have bank funding then you will need to consider what security your business can offer the bank for the loan. Bank security can take many different forms for start up businesses. It is worth bearing in mind that banks will often ask one or more of the owners of the business to provide a personal guarantee for any loans so that if the business makes a loss and the bank cannot recover its debt from the assets it has security over, then the bank can claim the balance of the debt from the owners. The security a bank will require varies depending on the specific facts of the start up and what the business and/or owners are willing to provide (which is a matter of negotiation between the parties). EQUITY FUNDING You can generate capital by selling shares in your business. You need to 3 February 2015

4 4February TO ADEQUATELY MANAGE THE BUSINESS RISK, IT IS IMPORTANT TO HAVE IN PLACE APPROPRIATE CONTRACTS WITH STAKEHOLDERS... understand from all incoming shareholders what they expect to receive in return for their investment, for example: will the new shareholder be a silent investor or will they expect to participate in the life of the business by also becoming a director? does the new shareholder expect to have a say on all decisions concerning the business, or only the major ones? Is your idea of a major decision the same as the new shareholder? is the new shareholder expecting to exit the company after a specific period or is he happy to remain in the business indefinitely? if the new shareholder wants to leave after a year, can he sell his shares to anyone or do you want to retain a say in who participates in your business? If your business has two or more shareholders then you should consider entering into a shareholders agreement which regulates the relationship between the shareholders and clearly defines what the shareholders can expect from the business and each other. The questions listed above are merely a snapshot of the issues you need to consider, there is a lot more that need to be ticked off your list to ensure

5 that the interests of you and your business are adequately protected if a new shareholder is introduced. SHAREHOLDERS AGREEMENT If there are two or more shareholders in a business then the parties should discuss and agree a shareholders agreement, which is a written contract between the parties setting out the way the business of the company will operate. Such an agreement may help avoid future disagreements between the parties relating to the operation of the business it is worth noting that a shareholders agreement is a private document, and therefore is not filed at Companies House. Outlined below are the common issues the shareholders will want to regulate and which should be included in the agreement: in what proportions will the shares be held? Will there be a minority shareholder and, if so, will he or she receive any special protections? The point here is that ordinarily a minority shareholder can be out-voted by the other shareholders. However it is possible to provide in a shareholders agreement that certain matters cannot be decided without a particular shareholder s approval; do all the shareholders have the same rights? Can all the shareholders vote at a shareholders meeting and have equal rights to a dividend? are there certain business decisions which will require the unanimous consent of the shareholders? can the shareholders sell their shares to anyone they choose or are there restrictions and/ or conditions? if new shareholders are introduced in the future, what happens to the rights of the existing shareholders? Are the rights of the existing shareholders diluted or are they given the opportunity to maintain their proportionate shareholding? if the business requires further funds in the future, how will these be raised and what are the potential consequences to the existing shareholders? if the business needs to diversify in the future, can the directors alone make this decision or do the shareholders need to agree on any change to the nature of the business? how will the shareholders resolve any disputes that may arise in relation to the way the business is run? who has the right to appoint and remove directors? can any shareholder participate in a competing business? If not, what are the restrictions on the shareholders other business activities? Should these restrictions continue for a specified period after a shareholder has left the company? BUSINESS NAME You need to ensure that the business name you plan to use is not already being used by another business. You can check this by searching with the WebCHeck service at Companies House to establish whether your chosen name is the same as an existing name on the index of company names. You should also check the Trade Marks Register of the UK Intellectual Property Office to ensure that the proposed name does not infringe an existing trade mark. Be aware that certain names can be deemed to be the same as an existing registered company name, even if the two names are not identical (ie because certain words are disregarded). Legislation also places a number of restrictions 5 February 2015

6 6February 2015 BRIEFING / COMMERCIAL...WE VALUE LONG TERM RELATIONSHIPS AND ARE PREPARED TO INVEST OUR TIME IN BUILDING THOSE RELATIONSHIPS... and controls on your choice of company name. ARTICLES OF ASSOCIATION Setting up a private limited company involves deciding on matters such as the company name (see above), the identity of the first directors and the location of the registered office, and filing the appropriate paperwork, together with a fee, at Companies House. Most importantly, you will need to have drafted a set of articles of association. The articles of association are the constitution of the company: its governing document which is publicly available for inspection. It sets out matters such as how proceedings of directors and shareholders are to be conducted, how shares in the company may be issued and allotted by directors, and how shares may be transferred by shareholders. Although the articles of association provide the legal framework by which the company is to operate, it is of course open to the shareholders to agree further provisions behind the scenes, and this is the function of a shareholders agreement (described above). It is sensible to include an obligation in a shareholders agreement for the shareholders to amend the articles of association to make them compatible with the shareholders agreement, in the event of an outright conflict between the two documents. There is a default set of model articles prescribed by law which may be suitable for your business. Alternatively it is possible to draft your own bespoke articles. Whether the model articles will suffice, or bespoke articles are needed, will depend on how the concerns described in this note impact upon your business. If later changes are needed, articles of association can be altered or replaced by the shareholders of a company (by passing a special resolution ). ACCOUNTS AND TAX If your business is a company then you are required, by legislation, to prepare annual accounts which must be filed with Companies House. You must also notify HM Revenue & Customs that a new company has been established so that you can register for corporation tax (irrespective of whether any tax will be due in the future). Subject to the type of business, if the turnover of the business

7 ...YOUR INTELLECTUAL PROPERTY RIGHTS ARE A VALUABLE ASSET OF YOUR BUSINESS AND SHOULD BE PROTECTED... 7 exceeds the current turnover limit then the business must be registered for VAT. Once registered for VAT this means that VAT must be charged and accounted for on the sales of goods or services by the business. If your business employs any staff then you may also need to register with HM Revenue & Customs for PAYE as an employer. As an employer, you must deduct PAYE tax and National Insurance contributions (NICs) from your employees pay each pay period and pay employer s Class 1 NICs if they earn above a certain threshold. INTELLECTUAL PROPERTY Intellectual property is something you create that is unique. It includes copyright, patents and trademarks, and can be: something you invent, like a new product; a product s design or appearance; a name, brand or logo; written work, including content on a website or in a brochure; artistic work, for example photography or illustrations; film recordings or musical compositions; or computer software. As a general rule, if you create something, you or your business usually own the intellectual property. However, if someone you employ or subcontract creates something for you, their contract with you should clarify who owns the intellectual property. Your intellectual property rights are a valuable asset of your business and should be protected so that third parties cannot use them without your permission. How you protect your intellectual property will depend on the type of rights you have created. COMMERCIAL CONTRACTS To adequately manage the business risk, it is important to have in place appropriate contracts with stakeholders (eg suppliers, customers) just in case the relationship with your supplier or customer becomes sour. February 2015

8 8February 2015 Commercial disputes which become litigious are often time consuming and expensive. This is especially the case where parties operate on a mutual understanding without any formal documentation and rely on the court to infer what the intentions of the party s were at the time when started working together. Contractual certainty in the context of business is especially important to ensure any disputes are dealt with quickly without hindering the every day operation of the business. A properly drafted contract sets out each party s obligations and liabilities. It will also provide an element of certainty as to what remedies are available if a party commits a breach. This helps to mitigate the need for a prolonged court battle. Areas which you may wish to consider to include in your contract include: who are the parties? are the party s looking to limit their liability? are warranties/indemnities being provided and/or given? what is the duration of the contract? how can the contract be terminated? In certain circumstances, the other party may have their own standard contract with their terms and conditions. These documents are often in favour of the party issuing it and therefore should be read carefully and be cautious about signing it without prior negotiating. EMPLOYMENT LAW Employees are often the greatest asset of any company. As an employer, you must be aware of your legal obligations to your employees. From recruitment and contracts of employment, to everyday HR issues and disciplinary and dismissal, there is a complex web of rules and procedures to follow. Even beyond termination, you will want to protect valuable and confidential company information, customers and clients that your employees will have been introduced to. By getting these things right from the start, you will save significant management time and financial expense and reduce the risks to which your business is exposed. The staring point is to put in place a contract of employment with each of your employees. OUR FEES We understand that when you start up a new business, cash can be limited and it can be difficult to pay the fees of your professional advisors. We are, therefore, happy to discuss different fee models that suit you and your business, such as payment of part of the fee up front and the balance in installments. We value long term relationships and are prepared to invest our time in building those relationships. The above commentary is, of course, not exhaustive of the issues that may be relevant to your new business. However, it is intended to assist your thinking, and also to illustrate how well-drafted legal documents can add value to your business, and help to protect and nurture your ideas, from the outset. Put simply, getting the legal paperwork right at the start should help your new business to avoid problems in the future. This publication is not meant as a substitute for advice on particular issues and action should not be taken on the basis of the information in this document alone. This firm is not authorised by the Financial Conduct Authority (the FCA). However, we are included on the register maintained by the FCA (www.fca.gov.uk/register) so that we can offer a limited range of investment services (including insurance mediation activities) because we are authorised and regulated by the Solicitors Regulation Authority (the SRA). We can provide these services if they are an incidental part of the professional services we have been engaged to provide. Mechanisms for complaints and redress if something goes wrong are provided through the SRA and the Legal Ombudsman. Bircham Dyson Bell LLP processes your personal data in connection with the operation and marketing of a legal practice and will occasionally send you information relating to the firm. If you would prefer not to receive this information or would like us to amend your contact details and/or mailing preferences, please notify us by Bircham Dyson Bell LLP is a member of Lexwork International, an association of independent law firms. Printed on sustainable paper. Follow BDB_Law Follow Bircham Dyson Bell

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