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Disclosing against warranties - advice for sellers of dental practices
Monday 25th July 2016

Selling a dental practice can be a tricky process. Like everything else, the buyer wants to get the maximum value for their money and the seller wants to get the most money in exchange for the minimum obligation. Negotiations as to the exact extent of a seller’s obligations to a buyer can be extensive.

In most cases, a buyer will look for ‘warranties’ from a seller. These are promises that are made by the seller relating to the business. For example the seller may promise (i.e. warrant) to the buyer that the practice is not subject to any pending claims  or that any Denplan patients have been correctly banded.

When selling a dental practice, it is wise to limit the warranties that you, as a seller, offer to a buyer, as any breaches of those promises could lead to a claim against you following the sale. However, it is all a matter of negotiation. From a buyer’s perspective they want some certainty that the practice is worth the money that they are handing over to you, which is why they will try to obtain extensive warranties from the seller.

From a seller’s perspective, the trick is to negotiate the warranties to a level that you are comfortable with. Give only those promises that you are able to deliver. Where there are problems with your practice honesty really is the best policy.

Read through the warranties that your solicitor is suggesting very carefully. If there is a fact or piece of information that you are aware of that goes against any of the warranties then the best course of action would be to formally ‘disclose’ it. A disclosure is a way of handing the information to the buyer or the buyer’s solicitors. Following disclosure of information, you can be protected against breaches of the warranty arising from such fact.  

For example, you may be asked to warrant that there have been no negotiations for pay increases with any staff members at the practice. However, it could be that two weeks earlier your practice manager came to you and said that she needed a substantial rise or she would consider leaving. The practice manager’s desire for a pay increase isn’t your fault, but the fact that the conversation has taken place could be construed to be a breach of the promise that you are making to the buyer. In instances such as this, it is imperative that you tell your solicitor. Your solicitor can then either negotiate the warranty to avoid any breach or alternatively formally disclose to the buyer’s solicitor the fact that the conversation has taken place. Either way, you would be protected from any claim for breach of warranty from a buyer.

A specialist dental lawyer will be able to protect your interests going forward and understand the consequences of warranties that a buyer will expect. With the right advice and a bit of honesty, you can ensure that any ongoing liabilities to your buyer are kept to a minimum.  


Dental Practice Sales of Expense Sharing or Partnership Dental Practices
Tuesday 19th July 2016

Whilst undoubtedly the world would be a simpler place if you only had yourself to consider when selling a practice, many dentists have built their businesses alongside friends and colleagues and, when looking to sell up, they must also consider partners or expense sharers.

If you operate your practice through a partnership or expense sharing arrangement, there will be some additional considerations to be given some thought.

As a specialist dental law practitioner, it is not uncommon to encounter expense sharers or partnerships with either no documentation governing their relationship or alternatively agreements that have not been professionally prepared and may not be fit for purpose. For example, they may not cover a retirement or sale scenario.  Before considering the idea of selling your business or share of a business it might be sensible to put some ground work in place and have an agreement prepared which sets out a clear pathway to retirement or sale. It isn’t always essential (unless your current agreement ties you in with no prospect of leaving) but it might make your life easier when you come to sell.

If you do have an agreement already in place, it is vitally important that you review this document to ascertain whether it clearly sets out the procedure for sale or retirement. The agreement may require you to offer to sell your share of the practice to colleagues in the first instance before you can market it externally.

Property considerations are also important. You should establish whether the property from which you operate the practice is occupied under a lease or a freehold. In most instances, there will need to be some form of transfer of the property to the new occupier. It is likely that your colleagues will need to be a party to any transfer documents and you may need to contribute towards the costs of them obtaining independent legal advice.  

You would need to establish whether your partners or expense sharers also want to sell? It may be that you can achieve a better price if you sold the entire group as a single business, rather than just your share.

If you are selling as a group, you need to carefully consider who is going to be responsible to the buyer and for what. You will each be receiving money for your respective interests in the business. However, do you want to give warranties as to the standard of care provided by your colleagues or accept responsibility for the past actions and behaviour of your colleagues?

If your solicitor has a good understanding of your group structure, expense sharers can give their own warranties to a buyer, so that they are only responsible for matters within their control. This could result in what is seemingly more work- as each seller will need to give their own full and complete set of responses to enquiries. However, this should not be a cause for concern as this will be for your own benefit, as you don’t want to be held legally responsible for promises made by your colleagues without your knowledge or consent.  

If you are selling just your part of the practice (or your own business within an expense sharing arrangement), although not essential, it is often important to find a buyer that will fit in. This is not so much a legal consideration but a practical one. If you discover that your buyer and colleagues cannot get on half way through the selling process, the buyer may withdraw from the transaction, which will mean wasted fees and expenses.

Your buyer will also probably need to enter into new partnership and expense sharing agreements with your current colleagues as part of the completion process, which is something you may wish to address early in the negotiations.

Brabners have a specialist dental law team and will be able to assist with reviewing or preparing partnership or expense sharing arrangements which can ensure that future plans for retirement or sales run smoothly. Whether you are looking to make the move now or at some point in the distant future getting the right advice can mean fewer disputes and lower stress levels when it comes to selling. 


Markets react to appointment of new Prime Minister
Friday 15th July 2016

UK Stock Markets rallied significantly following the announcement that Teresa May had been appointed as the next Prime Minister of the UK, as investors reacted positively to a new administration being formed without a lengthy leadership campaign. In addition to the FTSE 100 rising by 20% compared to its position at the close of the previous week, markets in the US also rallied in anticipation that the new administration will be able to bring an element of certainty to the UK’s post-Brexit position sooner than expected.

Sterling also recovered slightly against the dollar following the announcement of the new Prime Minister, but still remained significantly down from its pre-referendum position.  While this is bad news for people looking to holiday abroad, the weaker pound will be a significant boost to exporters and to large listed companies that have significant revenue streams realised in US dollars.  The weaker pound will also make UK companies more attractive as acquisition targets to US and foreign buyers, the South African group Steinof’s acquisition of discount retailer Poundland shows that the new currency position could provide a much needed boost to M&A activity in the UK.


Venture Capital Trusts - continuing challenges and potential opportunities
Monday 20th June 2016

Six months on from the dramatic change to the Venture Capital Trust (VCT) regime, we look back at the continuing challenges facing VCT managers and examine the potential opportunities for both VCT funds and investee companies.

In November 2015, the Government introduced two dramatic changes to the VCT regime:

1. The Buyout Bar

The first of the significant changes was the introduction of a restriction on VCTs funding corporate acquisitions (i.e. the acquisition of companies and businesses). This change barred VCTs out of one of their main historic routes for investing funds, namely backing MBO and MBI transactions. A number of fund managers are continuing to struggle with this drastic change and the subsequent repositioning of their investment focus from buyout transactions to development capital investments (now subject to a new age limit, discussed below). This change has also had the effect of significantly reducing the funding market for buyout transactions, presenting funding challenges to management teams looking to undertake MBOs and MBIs.

The UK buyout market has historically been the strongest in Europe, valued at £19.9 billion in 2014. Approximately half of these transactions are “secondary buyouts” (where the funder of a previous buyout transaction is bought out by a new funder). The buyout restriction on VCTs has left a substantial gap in £2-£10 million buyout funding market, leading to a contraction in the number of buyout transaction undertaking in the lower-mid market. This contraction will ultimately reduce the number of candidates for future secondary buyouts, impacting on the upper end of the buyout market and the opportunities available for larger private equity houses.

2. The Company Age Limit

The second significant change was the introduction of a maximum age limit for potential investee companies. VCTs now may only invest in companies within a period of seven years from the date of first commercial sale (increasing to 10 years from the date of first commercial sale for knowledge intensive companies).  This change significantly reduces the pool of potential investee companies which VCTs can consider investing into. Traditionally, entrepreneurs have used their own capital and the support of friends and family to fund developing businesses, only turning to venture capitalists and private equity houses once these sources of funds have been depleted. The new age limit restricts the ability of companies to seek VCT funding for further growth, after the funding from owners, friends and family has been exhausted in the early years of development.

One significant exemption to the maximum age limit is where the investee company received a VCT, EIS, SEIS or other state aid permitted risk finance investment in the initial seven year period. This exemption extends to a number of the European backed venture capital funds, which have provided significant funding in the UK regions for a number of years.  VCTs have a significant opportunity to provide second round funding to companies which have received European backed venture capital money in the past, particular where the company’s development needs have outgrown the funding available from their existing funders.

This exemption may also provide an important opportunity for investee companies if the UK votes to leave the European Union on 23 June, as a leave vote could deprive the European backed venture capital funds of further capital for follow-on investments.

Opportunities for the future

While the above changes have presented significant challenges to VCT managers and buyout candidates, they do represent an opportunity for companies looking to raise early stage development capital. While the UK recovery has been strong in a number of areas, the funding market for sub-£5 million development capital investment has remained one of the most challenging for investee companies. As VCT fund managers reposition their funding offering, investee companies may now find increasing opportunities to raise early stage development capital to achieve their business goals.


Unpicked and resewn
Thursday 18th February 2016

February appears to be the month the clothing and fashion industries have decided to make use of pre-pack administrations to keep struggling business alive.

Some of the names who have decided to use this method of corporate restructure include the historic British fashion label, Ben Sherman, and out of town shoe retailer, Brantano.

American company Marquee Brands (backed by private equity finance) has just completed the successful sale of its Ben Sherman UK operations to BMB Clothing, a Leeds-based company, while retaining ownership of the brand. Marquee will licence the brand to BMB which will in turn run those shops which remain open. The restructure has seen the closure of the London shops but all other stores are intended to remain open and the brand will live to see another day.

Brantano owner, Alteri, has also just used this sometimes controversial restructuring option (which enables the company placed into administration to shed a number of its debts) to buy a total of 140 (out of 200) shops from the Company’s administrators PWC. 628 jobs have been put as risk but 1,372 have been saved.

Although sometimes criticised, the benefits of a pre-pack sale include, jobs being saved, minimising damage to a brand and it often being the last option where the alternative would be liquidation and the immediate cessation of a company's business.

If you would like to discuss any matters regarding corporate restructure please contact a member of the Brabners LLP insolvency and corporate restructure team.


Who to sell your business to?
Friday 12th February 2016

In the final edition of this series of blogs looking at selling your business, we are going to focus on the question of “Who to sell your business to?”. This follows on from our previous editions looking at the “When to sell your business”, "Why you should sell your business" and "How to sell your business".

When considering who to sell your business to the obvious and in most cases critical question is that of price and how to maximise it. However there are other factors to take into account, some of which will be of more importance to some sellers than others. These might include confidentiality, speed, competition law and ongoing liability under the sale agreement. Below we look at some of the different categories of buyers that may be considered and some typical traits that those buyers have.

1.         Trade sale: Typically a sale of your business to a competitor or a third party that wants your business for complementary reasons is likely to result in the highest sale price. However, concerns about confidentiality will prey upon some sellers’ minds as, whilst the release of information should always be controlled, the buyer will as part of any due diligence process want to delve into information that may well be business critical. The last thing a seller wants to do is to be giving away that information and for the sale to then fall through. Whilst any well advised seller will have a proposed buyer sign a confidentiality agreement, once information is out there then it is very difficult to control.

In relatively rare cases it may also be necessary to consider competition law issues when selling to a direct competitor in circumstances where the buyer and/or the seller hold a dominant position in the market. We certainly have been in a position of having to advise a client to market the business other than to European based buyers for this reason.

2.         Overseas buyers: We are seeing an increasing number of sales to overseas buyers and these can demand a premium for the seller.  What does have to be borne in mind, however, is that buyers from some overseas jurisdictions, the US in particular, have more stringent “conventional” provisions within their acquisition agreements than in the UK and therefore the risk of a subsequent warranty claim under the sale agreement may be greater.  We are also seeing overseas buyers regarding a retention as being normal.

3.         Private equity:  Private equity houses are very much on the lookout for good opportunities in the current market as they are acquisitive and looking to grow. Therefore, for the appropriate business, they should be considered. It needs to be borne in mind, however, that they may well need to find a management team to back if the sellers are not willing to stay on and the price they may offer may not be as high as a trade sale as, unless they have a portfolio in the same sector, they may not have the ability to generate economies of scale in the same way that a trade buyer might.

4.         Management Team:  Identifying a management team to acquire the business from a retiring owner can work very well.  Such an approach has advantages of confidentiality and the seller may be able to give less in the way of warranties and indemnities than it would have to give to a third party trade buyer or a private equity house. On the other hand, a seller will want to be sure that the proposed management team will be reasonably certain of being able to raise the necessary funds. In addition, the seller may be asked to defer some of the consideration payable to assist the management team in funding the acquisition itself. The risk of that deferral may, however, also be an opportunity in that the seller may be able to retain a shareholding in the hope that the acquiring management team increases the value of the business further and gives a second pay out for the seller when that management team exits.

Which type of buyer is right to approach is something unique to each and every transaction and should therefore only be undertaken in consultation with your advisers. The golden rule is not to simply tout the business to anybody and everybody but to have a focused, targeted and controlled process over who you approach having had regard to the above factors.

We very much hope that you enjoyed these series of blogs and would recommend you to also read our series of articles looking at directors’ duties and responsibilities. In the first edition look at "Directors' duties and responsibilities under the Companies Act 2006", and in the second "Directors duties and responsibilities where shareholders are in dispute".

If you would like to discuss any matters regarding selling your business please contact Rupert Gill on 0151 600 3106 or by email at


The Only Way is Ethics
Wednesday 27th January 2016

A recent survey conducted by Close Brothers Asset Finance (Close), the results of which were published on 11 January 2016, has indicated that over half of UK SMEs surveyed do not have a formal ethics policy in place in their organisations.

Close surveyed 500 SMEs finding that 55% of the businesses questioned had no formal ethics policy in place whilst, on the other hand, 52% of UK SMEs surveyed had been questioned regarding ethics in their supply chain with 56% stating that they have been on the receiving end of unethical business practices. If this survey is representative of the entire UK SME market that would mean that approximately 2.96m businesses do not have a formal ethics policy in place.

Whilst not a document formally required by law, an ethics policy, sometimes known as an anti-bribery and corruption policy, can be a useful means to communicate, to staff, the way in which people within the business should communicate with clients, suppliers and colleagues.

Under UK law a commercial organisation which fails to prevent bribery committed by an associated person on its behalf is guilty of an offence under the Bribery Act 2010. If convicted, the organisation may face an unlimited fine and the negative publicity associated with such a conviction is likely to be harmful to ongoing commercial relationships.

An organisation’s primary defence in these circumstances is to show that, at the time of the infringement, it had "adequate procedures" in place to prevent bribery. The MOJ has produced detailed guidance on procedures that can be considered “adequate” by the UK courts, and an ethics policy can be a cheap but effective way of demonstrating that a company has taken steps to introduce "adequate procedures".

Numerous studies have been conducted to establish the financial value attributable to maintaining a high standard of business ethics, and whilst this is difficult to say with certainty, it seems that formally setting out an ethics policy can help both protect the business and point towards a level of business practices exceeding those of the majority of SMEs in the UK market.


Crowd Funding, where do I stand if my investment fails?
Wednesday 25th November 2015

The BBC recently reported on the difficulties faced by investors in Zano, who invested via Kickstarter to fund the development of a mini drone, in anticipation that each investor would recieve one of the drones once the project was completed.  Following difficulties within the company, it now looks highly unlikely that investors will receive a product meeting the specifications originally anticipated (if, indeed, a product at all).

In this Article we consider the position that investors may find themselves in when Crowd Funding Investments go wrong:

Debt Crowd Funding

Debt Crowd Funding (or peer to peer lending) arguably provides investors with the greatest level of certainty of receiving their money back. Unlike with other forms of Crowd Funding, investors can expect to receive a repayment of their investment (plus interest) by the end of the loan period.  Certain Debt Crowd Funding loans will also be secured against the assets of a company (e.g. with mortgage over the company’s property or a charge over its stock).

Where a company that Debt Crowd Funding fails, an investor with security will have the right to receive a proportion of the proceeds from the sale of the mortgaged property or charged assets, in priority to the company’s unsecured creditors. It is important to note that, while security will give an investor priority over a Company’s unsecured creditors, investors are still likely to rank behind any bank or other intuitional creditors (who will demand to rank ahead of any crowd funding investors).

If an investor has made a Debt Crowd Funding investment on a unsecured basis, they will rank as an unsecured creditor of the company and, in the event of insolvency, can likely to expect to receive only a few pence in the pound (if anything at all) from the sale of the assets of the company once the secured creditors have been repaid.

Reward Crowd Funding

As with Zano, Reward Crowd Funding involves investors investing in a company in exchange for a promise of a future reward or product. Where the company fails to deliver on the promised reward (or delivers a reward which is not up to the expected standard) an investor may have a contractual claim against the company.  However, if the company is insolvent such a contractual claim will only entitle the investor to rank as an unsecured creditor, standing behind the secured creditors of the company.

Equity Crowd Funding

Equity Crowd Funding involves investors subscribing for shares in a company. Unlike Debt Crowd Funding, the investment will not normally be repaid by the company over time and, unlike Reward Crowd Funding, the shareholder cannot normally expect to receive a reward from the company.  Investors investing for Equity Crowd Funding can hope to receive dividends over time or a share in the in the proceeds on the sale of the company, if the company is ever sold.

In the event of insolvency, shareholders will rank behind all of the company’s other creditors and investors can only expect to receive any of their money back once all of the company’s other secured and unsecured creditors have been paid.  In most insolvency cases, this is extremely unlikely.

Investors Beware

Crowd funding is becoming increasingly popular for start-up companies or concepts, which are considered too risky by the traditional mainstream funders. It is therefore important that potential investors ensure that they are fully aware of the risk in pursuing a Crowd Funding Investment, particularly (as in the case of Zano) the risk that the promised reward may never materialise.

Investors should also be clear before committing to an investment as to the level of due diligence undertaken by the Crowd Funding Platform.  The level of due diligence undertaking by platforms does vary and may not (particularly in the case of a start-up concept) extend to confirming that the concept behind the investment is viable.

Silver Lining/Tax Relief?

The Government has recently consulted on the introduction of a new form of bad debt relief for peer to peer loans (although it is proposed that any relief would only be available against income from other peer to peer loans, rather than general income). The relevant legislation is proposed for Finance Bill 2016, however it could be the case that peer to peer lenders who suffer bad debts between 6 April 2015 and 5 April 2016, that meet the conditions for relief when introduced, will still be able to claim that relief in their 2015 tax return.


When to sell your business
Thursday 22nd October 2015

In this series of blogs looking at selling your business, we have previously looked at the sale process in overview and answered the questions of "Why you should sell your business" and "How to sell your business". In this edition we are going to focus on the "when to sell your business".

Timing the sale of your business can be critical and have an impact upon price, the sale process and indeed whether the business will be sold at all.  There are a number of factors to take into account which may include the following:

  1. Growth – you need to be able to demonstrate that there is potential for further growth in the business that the buyer can take advantage of.
  2. Year end - typically a buyer will want to see a relatively recent set of filed (ideally, but not necessarily, audited) accounts.  Whilst it is not critical to have these in place for when you go to market, you will have to at least be able to show anticipated figures for the current/recently concluded year end.  The risk, however, is that the actual results don't meet or exceed the anticipated results which is likely to lead to a loss of buyer confidence at best through to a reduction in the buyer's offer to the buyer actually walking away.
  3. Seasonality - if there is strong seasonality to your business then given the time and effort any sales process takes, trying to sell during your busy period makes little sense. It is vital during any sales process that management keeps control over the business; the sales process is distracting enough without having to deal with your busy period as well at the peak of that process.  At the same time, please bear in mind that any sales process will typically last 6-9 months so advance planning and the support of your advisors is critical.
  4. Business Issues - as part of the scoping exercise with your advisors you should take a close look at your business to prepare it for sale.  That process may identify issues that will be unattractive to a buyer.  The integrated approach offered by Brabners and Brabners Stuart helps this as there is immediate legal support for any issues identified by Brabners Stuart.  Those issues may be ongoing litigation, poor compliance, untidy contractual arrangements with your employees or unprotected intellectual property rights to name but a few.  Wherever possible steps should be taken to resolve any such issues prior to going to market to avoid them causing a buyer concern (or worse).
  5. The market/legislation – regard should be had to the market the business operates in as well as impending legislation affecting the business.  Both can give risks and opportunities.
  6. Presentation - there will be times of the year when your business will look better than others. Whilst it is accepted that this is window dressing, don't underestimate its power if it is done well.
  7. Your Buyer - in some cases you will know who you will want to market your business to.  In such instances be careful with the timing of your approach.  For example, approaching a listed Plc that is in the process of presenting its results to the city runs the risk of the approach getting lost.
  8. Personal Issues - remember that your advisors cannot undergo the process alone, they are instead your guides for a journey that has to be undergone together.  Accordingly, if there are dates that have to be avoided for whatever reason, factor them into the timetable from the start (rather than announcing that you are off on a three week holiday at a critical time with only a few days notice.....been there!).

Having said all of the above, there is never a perfect time to sell and there will always be reasons to put the sale off.  The risk is that you don’t decide to sell until the growth in the business is exhausted thereby making the attractiveness of the business that much less.

The final critical question is "to whom?" which is something we will look at further in our next blog.  To read the next blog when it is published over the next month please follow us on our Twitter account.

If you would like to discuss any matters regarding selling your business please contact Rupert Gill on 0151 600 3106 or by email at


How to sell your business
Tuesday 22nd September 2015

In this series of blogs looking at selling your business, we have previously looked at the sale process in overview and also at the question of "why?" (read our previous post 'looking to sell your business'). In this edition we are going to focus on the "how?".

Having taken that difficult decision to sell what may have been a lifetime's work or a family jewel, the next step is likely to be almost as difficult; how does one go about selling a business. The temptation will be to jump immediately to the questions of "when" and "to whom" but those are decisions better taken in conjunction with your advisors. Instead, focus on the "how" and the first step in answering that question is by the appointment of appropriate advisers.

When appointing advisers there is an important balance to be struck between not discarding people that you trust, have worked with and who have advised you during the course of your everyday business dealings but at the same time ensuring that you have advisers with appropriate deal and negotiating expertise.  Both trust and appropriate expertise are critical and to ensure that you have that balance right speak to people you know, your bank manager or even your existing advisers about whether they are suitably equipped. That advice will principally come in the form of lead advisory services (usually accountants who specialise in sales activity) and legal advice. Typically the lead advisers will advise you on price, undertake the research to find an appropriate buyer and then structure and negotiate the transaction with the lawyers then implementing it as well as providing specific advice on legal issues that may arise along the way.

Having decided on your advisers the next step is to consider factors such as your price aspirations, the advisers expectations of what price might reasonably be expected to be achievable, whether the sale should be structured by way of a sale of the Company's assets or of the shares in the Company, who might be likely buyers (be that an MBO, trade sale, sale to private equity or otherwise) and how those buyers might be approached.

Whether the sale is a sale of assets or a sale of shares is likely to be primarily tax driven. The conventional wisdom is that a seller will want a share sale to take advantage of entrepreneurs relief and avoid the risk of a double tax hit; indeed that is the most common structure.  However, a buyer may not want the risk of acquiring a company or the cost of the more detailed due diligence exercise that a share sale necessitates. Alternatively, the company that owns the business being sold may have history that makes a share sale difficult or other assets that wouldn't form part of the sale.  Accordingly, nothing can be certain at this early stage.

For the reasons stated above, appropriate advice is critical to guide you through the "how" at this stage in the process. Ideally you will only want to try to sell once, in a manner that helps the business but at the same time maximises your value and therefore having advisers who are in a position to give you the best advice having regard to nature of your deal is critical. Partly for those reasons Brabners became a partner in what is now Brabners Stuart, a lead advisory practice, giving you an integrated approach between your legal and lead advisory teams.

The next critical question is "when?" which is something we will look at further in our next blog.  To read the next blog when it is published over the next month please follow us on our Twitter account.

If you would like to discuss any matters regarding selling your business please contact Rupert Gill on 0151 600 3106 or by email at