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March 26, 2018

MARCH'S NEWSLETTER

Corporate news

Initial Coin Offerings (ICOs)


What is an ICO?
An initial coin offering or ‘ICO’ is one of the newest ways to raise capital in the digital market. It is a low-cost time efficient type of crowdfunding which is facilitated through the use of distributed ledger technology.

The process of an ICO
It involves a company issuing their own digital currency (or tokens) and offering them out to potential ‘supporters’. The tokens may be traditional securities such as shares or debt securities, while others may represent a right to access or receive future services on preferential terms. To start the process the company will formulate a business plan detailing how much funding they need, what the funding is for and how long the ICO will remain open for. If the company doesn’t receive the level of funding that it needs then the tokens are returned to the supporters and the ICO fails. 

The process is similar to that of an initial public offering (IPO) except that the ‘supporters’ (investors) receive tokens in return for their investment instead of shares in the company. Much like an IPO, the supporters invest in the hope that the value of the tokens increases over time. However, some company’s also offer some form of digital service as a form of return for the investment to entice supporters in. 

Regulation
There is a lack of regulatory barriers which is seen by some as one of the main attractions of carrying out ICOs. Whilst there is no regulatory framework in the UK which is specific to ICOs, it is a common misconception to say that ICOs are unregulated. ICOs may require authorisation under the Financial Services and Markets Act 2000 if they carry out activities which are regulated, such as dealing. 

So far so good… 
The returns seen from ICO’s to date have been quite positive. One of the most successful investment raises of 2017 to date has been by the file storage network company Filecoin which raised 257 million dollars through the use of an ICO.

 

The information contained in this article is for information purposes only and is not intended to constitute legal advice. If you require further information our corporate team would be more than happy to assist you. Please contact us at corporate@greeenawayscott.com or call us on 029 2009 5500 to speak to one of our team.

 

Commercial news
Preparing your commercial documents for the sale of a company


Whilst the core transactional documents in the share sale of a company will be dealt with by the corporate lawyers, a multi-disciplinary team approach will usually be required with support from commercial, employment and property teams. The commercial documents that you could be asked to provide include the company’s standard terms and conditions, client contracts, licence agreements and any documents relating to the intellectual property of the company, for example, any assignments or licences. These are likely to form a large part of the due diligence of the company and it is important therefore to make sure these are in order in advance of the transaction.

Evaluating the company’s standard terms
Any purchaser stepping into the company’s shoes will want to complete a review of the company’s current standard terms and conditions of sale or purchase. This will be in order to assess what terms the business has been trading on, particularly the payment terms, delivery terms and in relation to any goods when risk and ownership will pass.

Client Contracts
A purchaser is also likely to request to see a number of commercial contracts that you have in place with clients/suppliers as part of the due diligence process, particularly copies of any commercial contracts that are material for the business or contain guarantees. This is also likely to include contracts which have a term in excess of 6 months, contracts that cannot be terminated on one month’s prior notice without payment of compensation, and all hire purchase, rental or leasing agreements. 

A review of your commercial contracts for change of control provisions, which means the other party can terminate on any change of control of the company, will also be essential. It may be that you can obtain the other party’s consent to the transaction, and you could approach this in advance to save time during the transaction.

What you can do to prepare
Corporate transactions can be extremely fast paced and therefore ensuring you have all your commercial documents in order before the other side commence their due diligence process will help to streamline the transaction and avoid unnecessary delays. 

Before entering into a corporate transaction, review your standard terms and consider when they were last updated. Have there been any legislative changes since they were last reviewed or has the business changed the way it trades meaning they are no longer fit for purpose. If so consider updating them prior to entering into the sale. Review the contracts you have in place with all of your clients/suppliers and make sure you have full pdf copies that are easily up-loadable to a data room or other facility for the other side to access. Contact any parties who have the ability to terminate the contract for change of control, particularly if these are contracts are material to your business and termination will, therefore, damage the value of the company.

If you would like advice on your requirements under the GDPR please contact the Commercial team by emailing commercial@greenawayscott.com or visit our website at www.greenawayscott.com

 

Employment news
GDPR: Employment Implications


With 60 days until the General Data Protection Regulation (GDPR) is implemented, it is crucial employers understand its impact and create compliance strategies for managing employee personal data (PD). Compliance will require:
  • More granularity.
  • Greater focus on the legal basis for processing.
  • More extensive information and policies.
  • Extended rights for data subjects.

This has been backed up by greater penalties. Implications from an employment law perspective have been considered below.

 

Processing employee data
GDPR permits the collection and use PD where there is a lawful basis for doing so. This includes processing PD:

  • to perform obligations under an employment contract;
  • for the purpose of other legitimate interests;
  • to comply with a legal duty imposed on the employer in connection with employment law; and
  • with the consent of affected individuals.

Employers commonly rely on data protection clauses within an employment contract however the GDPRs strict consent provisions will now require a move away from this approach towards a comprehensive and clearly drafted privacy notice. GDPR defines consent as freely given, specific, informed and unambiguous:

  • Bundled consent or wording that is too general is insufficient to process PD.
  • Individuals must have a genuine free choice with the ability to refuse or withdraw consent without detriment.
  • There must not be a 'clear imbalance' between the data subject and the data controller.
  • Performance of the contract must not be conditional on consent to the processing of PD that is not necessary for the performance of that contract.

Employers should take account of these restrictions when relying on consent in order to process employee data. Employers should bear in mind that any data protection provisions to remain included in employment contracts are clear, specific and plainly worded and ensure that if consent is to be requested it is sufficient for the intended purposes and does not contradict any of the restrictions mentioned above. Potentially, new versions of such contracts could refer employees to an organisation’s data privacy notice or even append that notice to the contract.

 

Subject Access Requests (SARs)
The GDPR enhances employee rights regarding access to their PD:

  • Employees are entitled to more detailed information about the way their data is processed;
  • time limits for employers to respond is reduced to a month;
  • the £10 fee for responding to a SAR is removed; and
  • employers are required to give reasons for any refusal to comply.

Employers may (where requests are complex) extend time for compliance for up to 3 months. If requests are manifestly unfounded or excessive, employers may charge a reasonable fee or refuse requests. In such cases, employers must write to the individual within the month explaining their reasoning and informing requesters of rights to complain to the ICO or to seek a remedy in court.

 

Data Portability
The GDPR confers a new right which applies to data supplied by an individual and processed with a view to entering into a contract or to comply with a contractual duty owed to them. This applies to PD supplied by employee but also observed data (collected as a direct result of observation of employee activity). Employees are entitled on request to receive their data in a commonly used format and to have data transferred to other organisations.

 

Reporting
The GDPR places an obligation on data controllers to notify the ICO promptly and within 72 hours of any breaches. Employees will need to be aware of the notification requirements. It may be appropriate for employers to embed ‘fair culture’ practices so employees know that if they report minor or innocent breaches, the focus will be on resolving the issue.

 

Fines
Under the GDPR, maximum penalties for breaches of its requirements are €20 million or 4% of an undertaking’s annual turnover if higher. This is a drastic increase in comparison with current legislation and as such Employers should consider if they are GDPR compliant.

 

Preparation
To prepare for compliance with the GDPR, employers should take the following steps now:

  • update consent mechanisms, policies, procedures and privacy notices;
  • plan and train employees on how to handle SARs within the new timescales;
  • assess the ability to isolate and provide data in compliance with the GDPR's format obligations;
  • ensure data covered by the portability right can be supplied in the required format; and
  • update reporting mechanisms, policies and procedures.

If you need support in being GDPR compliant then please contact us. The employment team at Greenaway Scott are more than happy to assist with any clarification or further information regarding recruitment. Please contact us at employment@greenawayscott.com


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