May, 2020 - Parry Field Lawyers

We live in a time when paradigms are colliding. Old conceptions from an extractive economy which have been accepted for decades are being challenged by new ideas that are planted in the soil of a regenerative economy. One outworking of this is the growth of “Impact Investing”.

Traditionally, the primary driver when looking at an investment has been monetary returns for the investor. “You can pay a 9% return on investment? Well, that is not as high as the 11% I have on offer here – so you know where I am going.” However, such an outlook is limited and narrow because it is only focussed on financial returns.

Impact investing offers a different approach. The Global Impact Investing Network provides the following definition: “Impact investments are investments made with the intention to generate positive, measurable social and environmental impact alongside a financial return.”

So the alternative presented by impact investing is that there are other considerations that need to be thought about, such as:

What does the business actually do – is it an extractive business which is contributing to degradation of the planet? Coal fired power station, anyone? Sugary drinks? Tobacco?

Who does the business employ – is the business model built on the premise that there is exploitation in how cheaply it can produce whatever it makes, either onshore or offshore?

What other outcomes are there – perhaps social, cultural, environmental or other factors will be impacted by the business.

The key is that there will be some positive impact through the investment, while still generating return for the investor. It’s about thinking a bit longer before you decide what to invest in.

All this is increasingly relevant and growing – the Global Impact Investing Network did a survey and reported US $114 billion invested by the 208 respondents (large funds) in impact investments. They state regarding this that, “impact investing challenges the long-held views that social and environmental issues should be addressed only by philanthropic donations, and that market investments should focus exclusively on achieving financial returns.”

Locally, in New Zealand an Impact Investing Network was set up last year and they provide resources and information. More than $8 million was raised by one paradigm-shifting New Zealand fund (the Impact Enterprise Fund) which is investing into social enterprises and others pushing boundaries with their companies. Another (Purpose Capital) raised $20 million recently. Impact investing is here to stay and we are confident it will grow as more people step back and think through how they are investing their funds. What might this mean for you?

Please note that this is not a substitute for legal advice and you should contact your lawyer about your specific situation. Please feel free to contact us on 03 348 8480 or by email to Steven Moe – stevenmoe@parryfield.com or Kris Morrison – krismorrison@parryfield.com

Parry Field are now registered as a Service Provider under the Regional Business Partner Network. If you are looking to grow your business but require some support, you may qualify for vouchers to help pay for services, as Parry Field are able to provide legal support in the following categories:

Business Planning: We can provide training for Directors of businesses who are looking at their plans and considering what changes they might need to put in place or those who are looking to start a business and are planning the first steps they need to take when it comes to legal structures.

Capital Raising: Growing your business is important and we can provide training around how business owners can raise funding for their venture, covering topics such as types of investors, due diligence processes, Financial Market Authority rules and documentation often needed, such as share Sale and Purchase Agreements and Shareholder Agreements.

Governance: It is important that you have all the right practices, processes and policies in place in order to guide your business in the right direction. Therefore, it is important to know and understand how to run a business, as well as the legal obligations that are associated with it. We can provide you with the knowledge of different legal structures that will assist you in deciding the best structure for the business based on what stage it is at. We will also assist with director duties, governance documents, explain how these work and the importance of having the right documents in place.

If you would like to know more, please contact the Regional Business Partner Network www.regionalbusinesspartners.co.nz

In part one and two of our articles on buying and selling a business we looked at both the important issues and what the agreement for sale and purchase should cover. In part three, we will consider the impact of Covid-19 and how it has affected the buying and selling process and further points that need to be considered during these unprecedented times. Whether you are considering selling or purchasing a business, or you have just started the process, the following should be taken into consideration:

Due Diligence

In part one, we explored the importance of due diligence and key questions that should be asked. The effects of Covid-19 should not alter your approach to carrying out due diligence, in fact it may be that a more rigorous approach is taken by buyers to understand the implications Covid-19 has had on the business and how it would fare if another situation like this were to happen again. When carrying out due diligence, both seller and purchaser should be mindful that more time may be required to undertake and complete the process due to the restrictions in place, as the ability to obtain information such as important documentation or carrying out physical inspections may not be possible right away.

Material Adverse Change Clauses

As we are in the midst of the unknown, agreements between buyer and seller will be subject to greater scrutiny and negotiation. The inclusion of material adverse change (MAC) clauses in an agreement is likely to be of particular interest, especially to a buyer. A MAC clause is used to reduce risk and uncertainty for buyers during the period between the agreement and the date the deal closes. Such clauses give the right for the buyer to walk away from a deal. For a seller, taking the current climate into consideration the inclusion of such a clause should be drafted carefully, thinking about what is considered to be a change and looking to the future and the potential of a similar situation occurring again.

Finance

As a buyer, if you are obtaining finance from a third party such as bank, it may take longer and become more difficult. In these uncertain times, banks may be reluctant to lend or may seek additional requirements are satisfied in order to obtain approval. Therefore, it important that the sale and purchase documentation covers the risks that are associated with lending during this time. For example, the seller may want to include a break fee, if finance is unable to be obtained by the buyer. Where a buyer may want the ability to walk away from the deal and have a financing out condition. It will be up the parties to balance the risk and reach an agreement that they are both comfortable with.

Warranties

In this current climate, sellers may be reluctant to agree to warranties about the state of the business, as the long term effects of Covid-19 on a business may not be known for some time. While for buyers it may be that they look at additional situation-specific warranties in relation to this pandemic. Warranties will be subject to robust negations even more so than before, therefore again, it will come down to the parties being able to find the right balance in terms risk.

Other Conditions

The uncertainty for many businesses during this time may see the inclusion of other conditions in a sale and purchase agreement. Such conditions may relate to maintaining current suppliers or current employees.

Conclusion

As the restrictions ease, many are still trying to navigate their way through the unknown. It is difficult to know the long term implications of Covid-19 and effects that it will have had on the businesses that survived the lockdown period. Therefore, it will be important for those looking to buy a business to ensure they have done their ‘homework’. While sellers will need to be upfront and ensure they are covered if a situation like this were to ever occur again.

We often help both buyers or sellers of businesses and in this unique context would be happy to talk about your situation to make sure the agreements work well.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist in your journey. Please feel free to contact Steven Moe at stevenmoe@parryfield.com or Kris Morrison at krismorrison@parryfield.com should you require assistance.

What should the agreement cover?

In the first part on buying or selling a business here we saw there were some big picture things you need to think about when buying a business. This part will look at what the agreement for sale and purchase should cover and some key things that need to be thought through. While written from the point of view of a Purchaser, it will also raise the same issues that a Seller will need to think through.

Assuming the decision is to purchase the business (rather than the shares of the company – this point was touched on above) then a commonly used template agreement in New Zealand is produced by the Auckland District Law Society. While it provides a base and a process it can also be adapted to reflect the situation. In terms of process what usually happens is the agreement gets signed and it is subject to conditions – examples of the way that it can be customised are:

Documents to be supplied: We commonly add in many additional terms which relate to the due diligence discussed above and what records will be provided. This usually involves a careful discussion with the client to determine what they expect to see and then being clear about what they have. If you ask for a licence that the seller should have and they cannot provide it, then obviously a red flag goes up.

Conditions: These could include the purchaser arranging finance for the purchase by a certain date, being satisfied with the results of the due diligence, having the lease (if there is one) assigned to the purchaser, obtaining consents or licenses needed. Again, this will vary depending on the business so there is no standard wording that can just be pasted in.

Warranties: It is common to include warranties – these are essentially statements by the Seller about the state of the business. For example, a warranty might state that there is no litigation that the company is a party to. Often these will be subject to robust negotiations – for example, the Seller may want this to say “as far as I am aware” (a knowledge qualifier), or refer to a monetary value such as there being no disputes above “x” dollars (a monetary threshold qualifier).

Restraints: It is common to include restraints on the seller of the business – particularly if it were, for example, a catering business or there was potential that they start something new that competes. Restraints need to be reasonable and usually will involve a certain time period such as one year and there will be a geographic area which is specified. Again, this can be a point of rigorous negotiations.

Intellectual property: Goodwill and reputation often make up a big part of the value of the business which is being purchased so it is important to be clear about what that includes – for example, names (are they trademarked?), website, Facebook pages, client lists, patents or other registrations.

Contracts: As part of the due diligence it is important to look at the really key contracts for the business and focus on whether they have change of control provisions and/or the ability to novate or assign to a purchaser. It might be that there will be issues with the purchaser taking on contracts so that is important to find out as quickly as possible.

Tax and accounting: We always advise involving an accountant to assist with these aspects and confirming with them the tax position – for example, that the transfer will be free of GST. Most of the time both entities will be registered for GST and no GST will be charged but it is far better to get this clear from the start than needing to have a last minute panic.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist in your journey. Please feel free to contact Steven Moe at stevenmoe@parryfield.com or Kris Morrison at krismorrison@parryfield.com should you require assistance.

In the last few months we have been helping several people as they purchase businesses. At the same time there have been other clients who are selling their business. It seems like for both sets of people there are some basic questions that they always have. This article tries to answer and clarify with some answers to some of the common points regarding the usual process involved and what documentation is required. Part 2 then deals with what the agreement for sale and purchase would normally cover. While this is written from the point of view of a Purchaser, it will also raise the same issues that a Seller will need to think through.

So, what are you actually buying?

One of the first things to think about is what you are actually buying. This can be confusing but think about it this way – are you buying the assets of the company, or the company itself? It is very common in New Zealand to simply purchase the assets and the business rather than the company. This is because if you buy the shares of the company then you are stepping into the shoes of that company – which means you get what it owns but you also could get what it owes. So the key here is to be clear about what you actually want and the usual advice would be that purchasing the business and assets is best. Having said that, there may be reasons why purchasing the shares of a company is necessary and you actually want to take on board all that it has – including licenses and registrations – so every situation needs to be thought through.

Due diligence …

It is one thing to see an opportunity and have some chats with the founder of a business about how great it is going. It is quite another to do extensive due diligence and satisfy yourself that everything is as claimed. A good due diligence process will bring to light anything which you need to be aware of as a purchaser. For example, the founder may have told you that they have both great suppliers and customers – is that all verbal agreements or are there robust agreements in place which specify how those relationships are governed? What licenses are in place – or not in place? What disputes are there or litigation or potential claims? What do the accounts reveal? Is the lease about to expire? How about relationships with employees?

What does a due diligence involve?

A good due diligence process will see the Seller provide access to all the key documents of the business so you can thoroughly examine them. This will likely involve advisers such as accountants and lawyers to look through documents. If you are considering selling a business then the counterpoint here is to keep good records. How many times have I been involved in due diligences where the Seller has no records of decisions or no contracts in place? Far too many times – a Purchaser will be scared off if you cannot show clean records and processes. And if you are a start-up, begin keeping good records right from the start, it will make it far easier to get investors or sell out later on.

Other things to think about…

There are many other points which we could cover and some hints are: Which employees will come over? What are the actual assets? Is the price sensible when looking at the accounts? Given the industry is there any potential for large claims or liability? What is the goodwill actually worth? Is there a reason they want to sell now? What future changes might there be in the industry that will affect the business?

Conclusion

We hope this is a helpful overview of some of the things to think about when buying – or selling – a business. In part 2 we will look at what the agreement for sale and purchase should cover. In fact the issues and things that need to be thought through will be the same no matter how many zeros there are on the end of the purchase price. The key thing is to remember that every transaction will be unique and so it is important to take a customised approach to what you ask for in the agreement, whether you are a buyer or seller.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist in your journey. Please feel free to contact Steven Moe at stevenmoe@parryfield.com or Kris Morrison at krismorrison@parryfield.com should you require assistance.

Buying your first home is exciting but it can also be quite overwhelming with lots of words being thrown at you that you don’t quite understand. As a house purchase is likely to be one of the largest investments you make, it is important that you are fully informed when starting the home buying process.

When my husband and I purchased our first home we were nervous and a little unsure of what was to come. Once we had worked our way through making an offer, working through our conditions and ending up at settlement day, picking up the keys to our first home is still one of our greatest memorys. I’m a young first home buyer and in this article I am going to break down some of the keys things I wish I had known/think other first home buyers should know.

1. Chat to the professionals

Once you are thinking about buying your first house, it is a really good idea to chat to your lawyer and bank/broker early on in the process. Having a strong team of professionals backing you from the get-go will ensure that the process is less stressful overall.

Bank

Your bank will be able to talk through the finance side of things with you to determine how much you can afford. They will also be able to work with you to determine if you are eligible for a KiwiSaver first home withdrawal or a HomeStart Grant. Your bank might also have special conditions that they need you to fulfil before they give an unconditional offer of finance. It is a good idea to find out what these conditions are (preferably in writing from the bank) and chat to your lawyer about them as early as possible. Common conditions that we would see include the bank receiving and being satisfied with a registered valuation or a builder’s report and having confirmation that your Kiwisaver funds are available for use. If you are purchasing in Canterbury, they may also wish to see all documentation relating to any earthquake claims associated with the property.

Lawyer

Contacting your lawyer early on means that you can get a better idea of what the process is going to look like and what you should be looking out for when you do find the right place. We would always suggest that you chat to your lawyer before you put an offer in on a property (sign a Sale and Purchase Agreement) as that way your lawyer can ensure that all the conditions are in your offer that need to be there.

2. Be prepared for extra costs

It is important to bear in mind that you will be putting more money into your purchase than just the purchase price. There will be additional fees such as your lawyer’s fees and builder’s fees if you choose to get a building report done. There are also extra fees that your lawyer will need to pay to Land Information New Zealand to transfer the title to the property into your name and register a mortgage and also to the local Council for ordering a LIM report.

3. There will be deadlines

There will be certain deadlines in your Sale and Purchase Agreement that you need to be aware of. Often, once you have signed your offer you will have 10-20 working days (about 2 to 4 weeks) to work through your due diligence and satisfy all your conditions. It is important to note that if you don’t meet the deadlines, the Vendor (the person selling the house) will have the option to cancel the Agreement on you.

Your lawyer will be able to advise you of the deadlines and will work with you ensure that the deadlines are met or that an extension is requested where needed.

4. Set time aside for meetings and phone calls

You should be aware that you will need to put time into getting things across the line. Your lawyer will be putting in a lot of work behind the scenes but there are certain things that they can’t do without you.

Signing KiwiSaver Withdrawal Documents

If you are looking to withdraw your KiwiSaver funds you will need to meet with your lawyer to sign some documents which they will then send away to your KiwiSaver provider. If you can’t meet with your lawyer to sign the documents, you will be able to do this with a local Justice of the Peace.

Phone Calls and Emails

While you are working through your purchase conditions, you will likely need to talk with various people. For example, if you are obtaining a builder’s report, you will need to arrange this with a builder and review the report that they send through. Likewise, you will need to talk about your bank/broker about finalising finance and with your lawyer as you work through the various conditions.

Settlement Documentation

Prior to settlement your bank will send your lawyer some loan documents which will need to be signed in order for your bank to pay out your loan on settlement. There will also be a couple of other documents that your lawyer will need to sign with you before they can transfer the title to the property into your name(s). These documents can normally all be signed in the same meeting.

5. Get excited!

If you are reading this article then congratulations on getting this far in the home buying process. Buying a house is a big deal and it will be a great feeling picking up the keys to your new home.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. Our property team at Parry Field Lawyers love helping first home buyers into their first homes. We explain things to you in an easy to understand way and are here every step of the way to answer your questions. For more information, contact us on 03-348-8480 or by emailing Paul Owens – paulowens@parryfield.com, Judith Bullin – judithbullin@parryfield.com or Luke Hayward – lukehayward@parryfield.com

So, what are you actually buying?

Due diligence …

What does a due diligence involve?

Other things to think about…

Conclusion

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