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November 30, 2017

November's Newsletter

Corporate News

Greenaway Scott advises on cross-border acquisition of Medisize B.V. 

Flexicare logo

Greenaway Scott led by Corporate Director Matthew Sutton recently advised UK headquartered medical device manufacturer, Flexicare (Group) Limited on their latest acquisition of Medisize B.V. 

This is the latest cross-border transaction advised upon by the firm, having recently advised German bitcoin exchange Vaultoro on its seven-figure investment from fintech investor Finlab AG and US-based medical device company Clinical Innovations Inc on its acquisition of Brenner Medical GmbH earlier this year.

Flexicare is a leading supplier and manufacturer of medical devices with an international presence in more than 105 countries worldwide as well as various subsidiaries in the US, Middle East, India, China, Japan and Malaysia.

The acquisition of Medisize will provide Flexicare with an enhanced presence in mainland Europe. Medisize, which is a manufacturer in specialising in the supply and distribution of a wide range of respiratory and anaesthesia products for critical care, neonatology, emergency, homecare and radiology has subsidiaries in Germany and Italy and operates wide sales and distribution networks in the Netherlands. The acquisition of Medisize will enable both organisations to focus on their differing areas of expertise, and better serve the needs of their distinct customer groups. 

Commenting on the deal, Flexicare Managing Director Hash Poormand said:

“This transaction underscores our commitment across Europe to be a leader in airway management and anaesthesia, with the ability to deliver and service the market at scale.
“The rapid organic growth that we have enjoyed, as a result of our innovative product portfolio and recent acquisitions, will give us further reach and the combination of the two companies will increase the value Flexicare and Medisize B.V. deliver to its customers and end users. The acquisition is expected to immediately accelerate revenue growth and drive overall earnings growth potential for Flexicare’s wider range of anaesthesia and airway management products, truly exciting times ahead.”


Matt Jennings, CEO and President, Phillips-Medisize commented:
“We believe this is a very positive transaction for both Flexicare and Phillips-Medisize. The Airway Management business closely aligns with Flexicare’s vision. Flexicare’s strength and presence in this market makes them well-positioned to fully leverage the talent and expertise of the Airway Management team in continuing to provide innovative airway management solutions.”

Matthew Sutton of law firm Greenaway Scott led the acquisition on behalf of Flexicare and commented:

“Greenaway Scott were delighted to advise Flexicare on this strategic acquisition. Through our international network of specialist law firms we were able to lead the process and advise our client on this multi-jurisdictional transaction. Congratulations to the Flexicare team”.

Commercial News

Third party rights – parties not named in the contract 

In general, only parties to a contract are bound by its terms and obligations imposed by the contract.  Only the named parties are entitled to benefit from and enforce the rights also created by the contract. This is known as the doctrine of privity of contract. This also means that third parties are not bound and do not benefit from the contract unless they are named.

The High Court has now set out how to identify third parties that are entitled to enforce their rights even if they are not named in the contract, under the Contracts (Rights of Third Parties) Act 1999. 

The Contracts (Rights of Third Parties) Act 1999 states that a third party is entitled to rights in a contract if it is expressly identified in the contract by name or description. This creates a statutory exception to the doctrine of privity of contract.

In a recent case, the High Court held that it was possible to identify a class or person who could enforce their rights under a contract by process of construction of the express terms of the contract. The question was whether the document purported to confer a benefit on the third party.

This is a useful decision to interpret the enforceability of third party rights under the Contracts (Rights of Third Parties) Act 1999. 

If you would like advice on third-party rights in contracts please contact the Commercial team by emailing commercial@greenawayscott.com or visit our website at www.greenawayscott.com

 

Employment News


Workplace Privacy

Policies and procedures set out the standards expected of employees and assist with the day-to-day running of the business. Policies can be stand-alone or form part of a Staff Handbook. It is advisable for any policies and/or Staff Handbook to be non-contractual so that employers have the flexibility to make changes and update them as required.

When dealing with employee issues, it is important that employers act consistently in their treatment of employees and policies help to ensure this consistency of treatment. 

Required by law

Disciplinary procedures and rules: the procedures for taking disciplinary action or dismissals, including appeals.

Grievance procedures: the steps to be taken on submission of a grievance.

Sickness absence policy: the terms relating to sick leave, sick pay and returning to work. 

Health and safety: If an employer employs five or more people, it must have a written health and safety policy. An employer also has a duty to bring the policy to the attention of all employees.

Whistleblowing: there may be specific requirements depending on the type of organisation. Listed companies are required to have written whistleblowing arrangements or explain why they do not. Companies governed by FCA and PRA whistleblowing rules require up-to-date written procedures in place. The Government expects all public bodies to have written whistleblowing policies. In all other cases, the existence of such a policy may offer protection to an employer beyond merely giving guidance to employees on how to raise concerns.

Some policies are not required by law but would assist to meet other legal obligations or provide a defence to liability where things go wrong. 

Anti-Bribery Policy: A company may be guilty of an offence if a person associated with them bribes another person, intending to obtain or retain a business advantage. A company may have a defence if it can show it had an adequate procedure designed to prevent bribery. An anti-bribery policy may assist in preventing bribery as well as meeting the “adequate procedures defence”. 

Tax evasion policy: A company commits an offence if it fails to prevent an associated person from facilitating tax evasion. It is a defence to show reasonable “prevention procedures” were in place, or that it was not reasonable to have any procedures in place. Implementation would assist an employer with meeting the statutory defence if a tax evasion facilitation offence is committed by one of its workers.

Equal Opportunities/Equality Policy: An employment tribunal may take into account the existence of such a policy when deciding whether discrimination has taken place. Provided a policy is implemented with proper training and publicity, and appropriate action is taken in the event of breach, a policy can help an employer establish a “reasonable steps” defence even if discrimination has been proven.

Data protection policy: This may help to ensure compliance with legislation. Data must be processed fairly and it is a requirement of fair processing that data subjects are informed of the purposes for which the data is intended to be processed. A data protection policy is one way of complying with this obligation.

Social media policy: this policy is essential due to the growing popularity of social media. This policy sets out the appropriate use of social media by employees.

As a minimum, smaller companies should ensure they have the above policies in place. Larger organisations generally have a much more comprehensive set of policies in place to adhere to best practice. 

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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