Compliance Archives - Milton and Cross

How to Identify and Assess Legal Risks in Real Time: A Guide for Businesses

Posted on August 10, 2023August 10, 2023 by admin in Compliance

Running a business involves navigating a complex landscape of opportunities and challenges, with legal risks lurking around every corner. Identifying and assessing these risks in real-time is crucial for maintaining a smooth operation and avoiding potential legal pitfalls. In this article, we’ll walk you through a simple guide on how to identify and assess legal risks in real-time, helping you safeguard your business’s interests and reputation.

1. Stay Informed:
The first step in managing legal risks is to stay informed about the ever-evolving laws and regulations in your industry. Regularly review industry publications, legal news, and updates to ensure you’re up-to-date on any changes that might impact your business. This proactive approach will help you spot potential risks before they become pressing issues.

2. Understand Your Business Activities:
Take a close look at your business operations and activities. Understand how each process works and identify potential areas where legal issues could arise. For instance, if you handle customer data, ensure you’re compliant with data protection laws. By comprehending the nuances of your business, you’ll be better equipped to spot risks that might otherwise go unnoticed.

3. Conduct Risk Assessments:
Regular risk assessments are essential. These assessments involve systematically evaluating different aspects of your business to identify potential legal risks. Create a checklist of common legal issues relevant to your industry and business type. Then, evaluate each aspect to determine its risk level. This could include contracts, intellectual property, employment practices, and more.

4. Seek Legal Expertise:
While you might be knowledgeable about your business, legal matters often require specialized expertise. Establish a relationship with a legal professional or law firm that understands your industry. Having legal experts on hand ensures you can get quick advice when you’re unsure about a potential risk or decision.

5. Monitor Contracts:
Contracts are the backbone of many business relationships. Regularly review contracts with clients, suppliers, partners, and employees. Ensure that all terms and conditions are clearly outlined and understood by all parties. This minimizes the risk of disputes and legal complications down the line.

6. Train Your Team:
Your employees are on the front lines of your business operations. Provide them with training on legal matters relevant to their roles. This could include data privacy, workplace safety, and customer interactions. Well-informed employees are more likely to recognize and address potential legal risks before they escalate.

7. Implement Technology:
In today’s digital age, technology can be a powerful ally in identifying and managing legal risks. Invest in tools that automate compliance tracking, data management, and risk assessment processes. These technologies can help you quickly spot anomalies and areas of concern.

8. Regular Audits:
Perform regular internal audits to evaluate your business’s compliance with relevant laws and regulations. This systematic review can highlight areas that need improvement and help you take corrective actions before legal issues arise.

9. Have a Crisis Plan:
Despite your best efforts, unforeseen legal issues may still arise. Having a crisis management plan in place can help you respond swiftly and effectively. This plan should outline steps to take in the event of legal disputes, regulatory violations, or other emergencies.

10. Learn from Others:
Keep an eye on legal cases and disputes in your industry. Learning from others’ mistakes can be incredibly valuable. Understand what went wrong and why, and adapt your own practices to avoid similar pitfalls.

Conclusion

In conclusion, identifying and assessing legal risks in real time is a vital skill for any business owner. By staying informed, understanding your operations, seeking legal expertise, and implementing proactive measures, you can minimize the potential legal challenges that may arise. Remember, prevention is key – addressing legal risks before they escalate can save your business time, money, and its hard-earned reputation.

The Regulation Of Courier And Logistic Companies In Nigeria

Posted on May 27, 2021May 26, 2021 by admin in Capital, Compliance, Small Businesses, wealth

Courier and Logistic services is big business. According to the US International Trade Administration, the value of Nigeria’s logistics sector as at 2018 was estimated to be N250 bn ($696 million US Dollars. This value has increased to N300bn.

Since the dawn of time, people have been moving objects from one place to another. Whether it was a stack of rocks for building a house, food or (more recently)items bought online. As time progressed, people devised more methods for transporting goods. These ranged from messengers running around delivering messages to homing pigeons or horses and carts.

The Nigerian Courier and logistics sector has been impacted by a huge infrastructure deficit, anti-business government policies, poor road networks, unstable electricity, and multiple taxation. This has prevented the sector from achieving its full potential, with local stakeholders unable to meet financial obligations, transferring costs and charges to end-users thus making them uncompetitive, and making room for foreign owned operators with the financial capabilities to absorb higher levels of business risk to enter into the market, entrenched corruption, and others being additional factors.

Do you want to invest in the Courier or Logistics Sector? We can guide you on the best way to structure your investment.

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WHEN IS A COMPANY INSOLVENT?

Posted on February 26, 2018 by admin in Capital, Compliance, Corporate Governance, insolvency, International Investment, Small Businesses

Corporate insolvency law is not merely concerned with the death and burial of companies. Important issues are whether corporate difficulties should be treated as terminal and whether it is feasible to mount rescue operations.

WHAT DOES INSOLVENCY MEAN?

Insolvency refers to the regulated legal process that ensues upon the bankruptcy of a company. Insolvency procedure registers and prioritizes claims, freezes other legal actions, limits company to business as usual, and tries to establish value from assets.

In a society that facilitates the use of credit by companies, there is a degree of risk that company creditors will suffer because the firm has become unable to pay its debts on the due date.

If a number of creditors were owed money and all pursued the rights and remedies available to them (for example, contractual rights; rights to enforce security interests; rights to set off the debt against other obligations; proceedings for delivery, foreclosure or sale), a chaotic race to protect interests would take place and this might produce inefficiencies and unfairness. This is what insolvency laws seek to prevent.

The end target of any restructuring or insolvency process is to return a company to financial health. Predominantly by lowering and decreasing its obligations. If the situation can’t be rectified, insolvency law will work to ensure a fair allocation of liquidated assets.

WHEN IS A COMPANY INSOLVENT?

There are two definitions of Insolvency, depending on the test applied by the court. Briggs J in Re Cheyne Finance Plc contrasted “a momentary inability to pay as a result of temporary liquidity soon to be remedied” with “an endemic shortage of working capital” which renders “a company insolvent, even though it may be able to pay its debts for the next few days, weeks or months before an inevitable failure.”

A company is balance sheet insolvent where the company’s liabilities exceed its assets.

A company is cash flow insolvent when the company is unable to pay its mature liabilities as they fall due. In this situation, the company may be balance sheet solvent and is experiencing temporary cash flow/liquidity problems.

Where a company is cashflow insolvent it may undergo restructuring through schemes of arrangement, administration, or receivership and be managed until it returns to profitability.

If the company cannot be returned to profitability, it may be wound up and its assets sold to satisfy creditors claims, after which the company is then liquidated.

Many companies would find themselves without access to funding or credit and may enter unnecessarily into insolvency proceedings if an arbitrary approach was taken to the balance sheet test. For this reason the cash flow test is used to identify companies that merely require a cash injection and those that need to be totally restructured.

In BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL Plc, The court held that the “balance sheet” test of insolvency may only apply where a company has reached a point of no return (where it is clear that the business will not be able to meet its future or contingent liabilities). However, if the cash flow test were the only relevant test for insolvency, then current and short-term creditors would in effect be paid at the expense of creditors to whom liabilities were incurred after the company had reached the point of no return because of an incurable deficiency in its assets.

An insolvency usually begins with an event of default (“EoD”) or inability to meet an agreed business obligation. This obligation may be a contractual debt, a bill payment or a business loan.

A period is sometimes allowed to repair the default (Cure Period); usually between 1 week to 3 months. If the Cure Period lapses or there isn’t one to begin with, the creditor has a right to declare EoD and pursue legal action against the company for the immediate payment of all outstanding obligations.

Final liquidations are a last resort, sometimes the best of both worlds can be achieved by a court approved private work out as creditors generally prefer private negotiation to judicial intervention.

Judicial proceedings are a fall back remedy, used when it is necessary to stay hold out creditors, bind dissentients, improve title, enhance foreign recognition, monitor gross unfairness and punish fraud.

When a corporate failure occurs, this may have a dramatic impact on the lives, interests and employment prospects of a number of parties. It is important to understand the nature of these potential effects. This would help us better manage the negative effects of corporate failure.

Why Lawyers Make Good Early-Stage Startup Hires

Posted on September 12, 2017 by admin in Compliance, Corporate Governance, entrepreneurship, International Investment, investment advisory, mergers and acquisitions, real estate, rule of law, Small Businesses, strategy, transaction advisory, Uncategorized, upscale, wealth

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By Daniel Doktori and Sarah Reed (culled From hbr.org)

It’s a startup shibboleth that entrepreneurship and formal education don’t mix. For icons such as Mark Zuckerberg and Bill Gates, so goes the lore, finishing a bachelor’s degree would have only stifled the creativity that fueled their companies to stratospheric success. PayPal founder Peter Thiel offers a $100,000 fellowship to “young people who want to build new things instead of sitting in a classroom.” Graduate degrees are thought to merely exacerbate the problem of too much thinking, too little doing. And while high-profile efforts by top business schools to teach and promote entrepreneurship have lessened the stigma around the MBA, the law degree continues to occupy a unique place of villainy among the startup set. After all, YouTube, Uber, and Airbnb, among many others, were founded on ideas that challenged, if not broke, laws and regulations. When it comes to a tech startup, lawyers are a bug, not a feature. Right?

Maybe not. Lawyers can add value in the obvious ways, helping to avoid early mistakes like issuing stock too late in the game, when the company has grown in value and the employees can no longer take advantage of favorable tax treatment. But more importantly, a lawyer on the early team can contribute to a thriving company culture by asking the right questions at the right times, providing perspective on crucial transactions, and getting smart fast on issues where the rest of the team lacks expertise.

Lawyers help startups deal with common transactions and avoid costly mistakes.

Issuing equity to the early team often triggers time-sensitive filings with the IRS. Successfully commercializing a product depends upon clean and clear lines of intellectual property ownership. Raising outside financing requires compliance with complex securities laws. A misstep on any of these items could mean an early exit for a startup company (and not the good kind). A corporate lawyer with a few years of relevant training can help navigate these and other common set-up requirements.

Moreover, lawyers, particularly corporate transactional lawyers, have repeated exposure to the types of deals — and the associated risks — that a startup will face. The dynamics between a CEO and the investors on her board are a function of the legal arrangements articulated in the financing agreements. The relationship between a company and its customers stems from a license agreement governing how users may interact with a product. Partnering with a larger company in a similar industry can, in the best case, open new markets or, in the worst, box a company into a corner, severely limiting options for growth and eventual acquisition. Lawyers understand these transactions and the perspectives of the negotiators involved.

And when the complexity of the particular deal exceeds the expertise of the lawyer on the team, she can play the savvy procurer of legal services, knowing how to target efforts and limit costs. Such experience comes in handy in managing other third-party service providers such as bankers, accountants, and consultants.

While these benefits are valuable, however, they don’t in and of themselves justify a startup hiring a full-time in-house lawyer. Early stage companies — at least those with founders sufficiently experienced or savvy to recognize that they walk a road pitted with legal potholes — tend to manage such standard risks by hiring outside counsel. And while the costs associated with that outside attorney often rank among the highest in a startup’s budget, they do not typically rise to the level of a full-time annual salary. To justify her presence among the first dozen employees, a lawyer must add something beyond legal knowledge to the equation.

Lawyers are trained to ask the right questions at the right times.

Counterintuitively, lawyers can add the strategic absence of knowledge. President Harry Truman famously longed for a “one-handed economist” when presented with the equivocating analysis of his advisers, but executives in politics and business need to understand opposing viewpoints in order to make informed decisions. Legal education and training includes a strong emphasis on questioning assumptions and probing for further information.

Rather than crippling the company through risk aversion and overanalysis, however, having a lawyer on the early team contributes to a data-driven, analytic culture of thoughtful decision making. Further, lawyers are trained as advisers and service providers. They can ask questions, explore options, and execute on answers, but they don’t expect to make the final call. This comfort with playing a supporting role helps avoid the egocentrism that can cripple any organization, particularly a nascent one.

The lawyer’s craft sometimes can be boiled down to a willingness to immerse herself within the “fine print,” offering to read what no one else will on account of complexity, length, or sheer dryness. Trained to ensure that even simple advice is backed by evidence, lawyers read closely to the point of comprehension as a matter of professional responsibility. Such a skill enables a lawyer to take responsibility for a wider variety of important matters. Fledgling startups inevitably have to rely on analysis over experience. Lawyers fit well in such situations.

Not every lawyer is well suited for the gig, however. A lawyer with the qualifications outlined above needs a tolerance for risk. For one thing, she must be willing to give up her plush office and lucrative salary for a computer station at a long table and compensation in the form of prayers, otherwise known as stock options. Her professional risk tolerance must follow suit. An essential attribute of a business attorney is providing “risk-adjusted” advice, and the level of tolerable risk for a startup generally far exceeds that for a Fortune 500 company. Lawyers at startups need to recognize that a workable answer today is often preferable to the perfect answer tomorrow; hand-wringers need not apply.

But risk tolerance must be accompanied by a stiff spine in situations where the company’s momentum (and the CEO’s vision) hurtles on a collision course with the law or the company’s outstanding commitments. In these cases, a willingness to speak up is one of the many things lawyers can bring to the table.

Daniel Doktori is the Chief of Staff and General Counsel at Credly, a digital credential service provider. He previously represented startup companies at WilmerHale, a law firm.

Sarah Reed is the Chief Operating Officer and General Counsel of MPM Capital, a venture capital firm that invests in early-stage life sciences companies. Previously, she was the general counsel of Charles River Ventures, an early-stage technology venture capital firm.

ARE SALARY DEDUCTIONS LAWFUL?

Posted on July 6, 2017 by admin in Capital, Compliance, Corporate Governance, entrepreneurship, investment advisory, Personal Finance, rule of law, Uncategorized, upscale, wealth

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Donald owns a golf course business run through a company called Great Ltd. The business is performing poorly and there are significantly fewer customers than last year. Donald takes the view that this is the fault of his employees. He decides he will ‘make the business great again’ by firing staff or deducting their salaries.

Donald has never liked one particular employee called Bernard. As Bernard is doing his usual maintenance work on the golf course, Donald walks up and asks him aggressively why he is not working faster. Before he can answer, Donald states that he is going to deduct 20% of Bernard’s salary!!!

Fast forward to the end of the month, Bernard receives his pay check and notices that indeed 20% had been deducted from his salary, after taxes! he was so infuriated and reported the matter to this line manager, who after giving him the runaround, informed him that the order to deduct his salary came directly from Donald. Understanding that he can achieve no objective by working with the company hierarchy, Bernard seeks legal advice on his options.

As a general rule, Under the Labour Act LFN 2004, all amounts payable to an employee in relation to the performance of work must be paid in legal tender and periodically. It should be noted that the Act does not not govern the amount or periodicity of wages, but merely stipulates that the terms should be reduced into writing by the employer.

There are very specific provisions in the Act regarding the circumstances when an employer can make deductions from an employee’s wage or salary and it is important for employers to understand their obligations.

S.5 (1) of the Labour Act provides that except where expressly permitted by law or where loss or injury has been caused to the employer by the wilful misconduct or neglect of the worker, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages or any other moneys to be paid by the employer to the worker, for or in respect of any fines. This suggests that the use of wage deductions as a punitive or disciplinary measure is to a large extent unlawful.

Allowable deductions include;

Pension
Personal Income Tax
Union contributions, where the worker has accepted in writing to make voluntary contributions to the trade Union
Over payment of wages, but only in respect of any such over payment made during the three months immediately preceding the month in which the over payment was discovered.
Deductions which have been expressly approved by the worker, e.g Cooperative contributions, judgment debts which have been duly garnished by the judgement creditor or loan payments due to a 3rd party. The written authorisation from the employee must specify the amount of the deduction and may be withdrawn or varied, in writing, by the employee at any time.
Deductions for goods or services provided by an employer, or a related party to the employer, to an employee in the ordinary course of the employer’s business, and which are provided on terms and conditions that are the same as, or not more favourable than, to the general public.
A deduction which is to recover costs directly incurred by the employer as a result of the employee’s voluntary private use of particular property of the employer, whether the use is authorised or not. e.g cost of items purchased on a corporate credit card for personal use by the employee, cost of personal calls on a company mobile phone

However, it is possible that a situation may arise where the salary of the worker is tied to their work product, in which case, the suspension of an employee’s employment may not be viewed as a salary deduction.

Employers need to be very cautious in effecting payroll deductions,understanding that there is a distinction between a “belief” that there is a right to recover money from an employee, a legal right to recover money from an employee, and the method that the employer can ultimately use to recover any money.

The Law does not simply permit an employer to take the easy option of making a deduction from the employee’s future wages or salary to recovery money which the employee owes the employer.

Further, employers should be cautious in simply seeking to rely on any general deduction wording in their employment contracts. Despite such contractual wording, an employee’s express written authorisation of a specific amount will still be required, unless the deduction is properly authorised by an industrial instrument, legislation or court order.

In addition, employers are prohibited from requiring employees to spend any part of their payment in relation to the performance of work where the requirement is unreasonable. Where employees are required to wear a particular brand or type of clothing and are required to purchase that clothing, then that requirement has to be reasonable to be enforceable and not be in breach of the Act.

Employers should seek professional advice if unsure about the lawfulness of a payroll deduction for the employer’s benefit, BEFORE proceeding, as an unlawful deduction may attract a civil penalty under the Act.

The Biggest Mistakes Entrepreneurs Make when Hiring Business Lawyers.

Posted on May 18, 2017 by admin in Capital, Compliance, Corporate Governance, Development, entertainment, entrepreneurship, International Investment, investment advisory, leadership, Personal Finance, real estate, rule of law, Small Businesses, strategy, Uncategorized, upscale, wealth

I do not pay my lawyers to tell me what I cannot do, but to tell me how to do what I want to do.

J.P.Morgan

Ikenna is a brilliant programmer and all round tech whiz. in 2015, he designed a classified listings website called TRUGG, which drew public attention and commercial success due to its user centered design and simplicity of use, as well as its global reach.

However, As his company grew rapidly, so did the rate of lawsuits filed against the company. Aggrieved users, competitors and random individuals would file cases against the company, costing the company millions of Naira in time, legal costs and settlements. After a few years of fielding these cases, Ikenna decided to seek advice from Joe, a fellow successful tech entrepreneur, on the desirability or otherwise of retaining a commercial lawyer for his business.

A good business attorney, when fully embraced and informed, guides the company and its management on all touch points- products, services, communications, investor relations and customer service. Your lawyer will provide vital assistance in almost every aspect of your business, from formal business incorporation to basic compliance, copyright and trademark advice, and civil, contractual, or criminal liability arising from the activities of the company.

Most small businesses put off hiring a lawyer until the sheriff is standing at the door serving them with a summons. Bad mistake. The time to hook up with a good business lawyer is before you are sued. It’s easy to get into court, but very difficult and expensive to get out once you’ve been “trapped”. Once you have been served with a summons, it’s too late–the problem has already occurred, and it’s just a question of how much you will have to pay (in court costs, lawyers’ fees, settlements and other expenses) to get the problem resolved.

A good commercial law firm should be ideally able to handle your lawsuits, negotiate your lease of office or retail space, file a patent or trademark, draft a software license agreement, advise you on terminating a disruptive employee, and oversee your corporate annual meeting.

For many entrepreneurs, the idea of consulting a lawyer conjures up frightening visions of skyrocketing legal bills. The fee a lawyer will charge to keep you out of trouble is only a small fraction of the fee a lawyer will charge to get you out of trouble once it’s happened. When you hire an attorney, ensure you draw up an agreement (called an “engagement letter”) detailing the billing method to be applied and also specifying what expenses you’re expected to reimburse. This saves from conflicts arising from billings and requests for reimbursements.

Your lawyer should tell you what the law says and explain how it affects the way you do business so that you can spot problems well in advance. However, you should note that no lawyer can possibly know everything about every area of law. If your business has specialized legal needs (a graphic designer, for example, may need someone who is familiar with copyright laws), your attorney should either be familiar with that special area or have a working relationship with someone who is.

You should be able to communicate openly and freely with your attorney at all times. Good looks and a dynamic personality are not as important in a lawyer as accuracy, thoroughness, intelligence, the willingness to work hard for you and attention to detail. Look out for a lawyer who believes in your business and who is willing to go above and beyond the call of duty in managing the risks of your business and resolving any issues that may arise before they start.

Estate Planning: Preparing for the Future

Posted on March 17, 2016 by admin in Capital, Compliance, corporate finance, estate planning, investment advisory, Personal Finance, real estate, succession, Uncategorized, wills

Thomas is a sound engineer, he makes a reasonably good income from his job with a prominent record label and he enjoys the benefits that comes from working with some of the biggest stars in the music industry. Thomas is married to Mimi and they have 4 beautiful kids Kene (15), Ada(13), Chika (10) and Thomas Jnr (8). The kids mean the world to him. Life is good for Thomas and his family, they travel regularly and have properties in choice areas within Lagos, Abuja and Port Harcourt.

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A few months ago, Thomas starts from sleep with severe chest pains, the pain is so intense that he can barely speak. Luckily his wife is able to take him to the hospital where he gets emergency treatment for a heart attack. Whilst he is recovering from his surgery, his wife informs him that his relatives had approached her and requested for a list of all his assets and properties, just in case that he passed away after the heart attack. She also informs him that his cousin attempted to take away one of his motor vehicles in her absence, and was only prevented by the efforts of the security man.

Thomas is incensed, however he is unable to leave his sick bed and even if he was, his doctor would not permit him to leave for fear that the heart attack would happen again. He instructs his wife to call his lawyers. Whilst she is away, he lies back and wonders what could have happened if he had passed away a a result of the heart attack- what would have happened to his family? Who would have provided for his family? He realises that his wife and children would have been thrown into the cold by his extended family and there would have been little remedy for them because he did not have a Will.

When his Lawyer arrives, Thomas asks for advice on the ways in which he can plan the distribution of his assets, so as to provide for his family in the event of his sudden demise and to ensure that his assets would be properly distributed and administered for the benefit of his wife and children. His Lawyer proceeds to explain the elements and benefits of an Estate Plan.

An Estate plan refers to the collection of documents which enables an individual manage his current and future assets in preparation for their death or incapacitation. Many people mistakenly believe that estate planning is only necessary for the wealthy. In reality, a basic estate plan is essential for everyone, regardless of income or net worth, because we all want to minimize confusion, unnecessary costs, and stress for loved ones after our death.

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Without proper preparation and documentation, assets like houses, retirement plans and savings accounts can end up in limbo for years, sometimes requiring expensive legal assistance to straighten matters out.

Some of the major estate planning tasks include:

Creating a will:
Wills are easy to create, but they require the distribution of assets to go through probate. Probate is a legal process that involves:
- Validating or proving a deceased person’s will;
- Identifying, inventorying, and appraising the deceased person’s property
- Paying debts and taxes;
- And ultimately distributing the remaining property as the will directs.
The probate process often requires a lot of technical paperwork and court appearances, and the resulting legal and court fees are paid from estate property, thus reducing the amount that’s passed on to heirs.

Limiting estate taxes by creating Trusts and setting up trust accounts in the name of beneficiaries:A trust can be more expensive to set up and requires professional assistance, but it provides benefits that a will cannot. First, when they’re structured properly, trusts will help avoid guardianship if you become incapacitated. Furthermore, A will only works after you’ve died; a trust, by contrast, works all the time, including periods of incapacity before death. Trusts usually avoid probate, which helps beneficiaries gain access to assets more quickly as well as save time and court fees. Depending on how it’s structured, a trust may also reduce estate taxes owed and can protect an estate from heirs’ creditors.

Establishing a guardian for living dependents:If you fail to appoint guardians in your Will and your children are orphaned before they reach 18, the courts will appoint guardians instead, but they won’t necessarily choose the people that you would have preferred to take care of your children. If when you pass away the other parent of your children survives, the surviving parent will normally continue to have full responsibility for the children. However, if neither parent survives (as in some road accidents) then the guardians you have appointed will take on the responsibility for your children. By appointing guardians you can ensure that your children are looked after by the people that you have chosen as the best people for the job.
Naming an executor of the estate to oversee the terms of the will:
The executor is responsible for making sure all assets in the will are accounted for, along with transferring these assets to the correct party. He or she also needs to ensure that all the debts of the deceased are paid off, including any taxes. The executor is legally obligated to meet the wishes of the deceased and act in the interest of the deceased. The executor can be almost anyone but is usually a lawyer, accountant or family member, with the only restriction being that he or she must be over the age of 18
Creating and updating beneficiaries on plans such as life insurance:

Setting up Funeral Arrangements:Funerals can also be paid for using assets from the deceased’s estate; however, the funds may not be available directly, so someone else will have to pay the immediate costs. The arranger of the funeral can pay the expenses and later be reimbursed in full once the estate is settled. Representatives like trust officers and estate attorneys can also pay funeral expenses from funds held in trust or from other available accounts, and later be refunded by the estate.

Establishing annual gifting to reduce the taxable estate:

Setting up durable power of attorney (POA) to direct other assets and investments

Posted on July 29, 2015 by admin in Compliance, corporate finance, International Investment, Personal Finance

STOCK BUYBACKS

The paramount objective of investment is profit, and the imperative for return on investment is no more relevant than when you have invested in a company and the company has declared a profit. The management of the company is however faced with the vexing question of determining whether to apply the profits towards issuing dividends to shareholders or to embark upon a stock buyback programme. Companies which retain substantial amounts of cash on their balance sheet make attractive targets for takeover, especially as they imply that the management of the company are incapable of effectively applying the retained earnings towards the generation of further profits for the company.

When a company repurchases its shares, it reduces the number of shares held by the public, thereby increasing the company’s subsequent earnings per share. This in turn increases the value of the outstanding shares. This option best obtains where the shares of the company are undervalued and shareholders are relatively unsophisticated. The repurchased shares may later be resold to new investors at a substantial profit to the company.

The repurchase programme has the added advantage of making the outstanding shares more expensive, reducing the attractiveness of the company as a takeover target. Moreover, buybacks reduce the assets on the balance sheet, thus increasing the company’s return on assets and return on equity without any substantial increase in the performance of the company. This cosmetic effect often impresses positively on the investment community, especially investment analysts and retail investors.

A further benefit of stock buybacks is the reduction of shareholder tax liability, making it a tax efficient form of earnings distribution. When a company makes a profit, it is statutorily obligated to pay Companies Income Tax on its profits before dividends are issued. Upon the issuance of dividends, the shareholder pays the government a withholding tax, meaning that the profits have been subjected to double taxation. Stock buybacks thus rewards the shareholder financially, without the tax liabilities inherent in dividend issuance.

Typically, buybacks are carried out in one of two ways:

Tender Offer:

the company may present the company with an offer to submit, or tender, a portion or all of their shares within a certain time frame. The tender offer will stipulate both the company is looking to repurchase and price they are willing to pay, which is almost always at a premium to the market price of the shares. Shareholders who accept the offer will state the number of shares they intend to tender and the price which they are willing to accept. Once the company has received all the offers, it will find the right mix to buy the right mix to buy the shares at the lowest cost.

A variant of the tender offer is the fixed price tender offer. Whereby the company stipulates a price at which it is willing to repurchase the shares and gives the shareholders the option to accept the offer as stated. This is the method currently utilized by Unilever Plc in its recently concluded tender offer.

Open Market Buyback:

This involves the purchase of the shares by the company on the open market in a manner similar to open market transactions commonly undertaken by any other party. It is important to note, however that the Investment and Securities Act (2012) requires companies to announce the commencement of a stock buyback scheme and the announcement of a buyback commonly results in a rise in the share price of the company.

There is no definite answer to the question as to whether stock buybacks are a beneficial option, as this depends upon the circumstances surrounding the tender offer.

Milton and Cross offers investment advisory and due diligence services to individual and corporate shareholders who require legal advice on the issuance or acceptance of tender offers and the elements of share repurchase transactions generally. We may be contacted directly on +2348036258312, or by email on : miltoncrosslexng@gmail.com

Separation of Powers in a Corporate Environment

Posted on June 29, 2015 by admin in Compliance, Corporate Governance

Corporations are associated with a number of governance problems, chief among which revolving around how to separate powers among the several stakeholders and still maintain a unified front in pursuing their core business. However, there seems to be a conflict of interest between shareholders and Directors in a large number of Nigerian companies, with a majority of Directors being the main shareholders hence limiting involvement of the minority shareholders.

Splitting the roles of chairman and chief executive may be done to ensure that an independent board will patrol management or to allow a leader to focus on strategy. However many academics and analysts who have studied the issue say there is little proof that it makes a difference in corporate performance. In cases where it seems to work, no pattern is clear: sometimes the chairman is independent but often he is the former chief executive.

Separation of powers is most closely associated with political systems, in which the government is divided into parts and provided with different sets of responsibilities. The number of groups created by a separation of powers arrangement vary across political systems, and are often based on the complexities associated with managing the functions of government.

While separation of powers is most closely associated with politics, this type of system can also be used in other instances. For example, a corporation may be comprised of a chief executive officer (CEO), board of directors, management teams, and non-management professionals. Each group has a different set of responsibilities, which allows a group to focus on efficiently and effectively undertaking its duties without also having to focus on doing the work of other groups. This type of approach works best in larger organizations, though smaller businesses may also separate powers.

A principle related to the separation of powers is checks-and-balances, a system in which the powers of one branch is limited by the powers of another branch. Hiring different people for the position of Chief executive and chairman can allow the chief executive to concentrate on running the business while the chairman and the board think strategically. The C.E.O. is a very operational role, and sometimes it’s difficult to see the forest through the trees, in such cases the chairman and chief executive can work as a team in order to achieve the best interests of the company.But having two egos fill these two central positions can be tricky and the outcome from keeping the two positions separate is dominated by a large number of uncertainty.

A lead director who is truly independent may accomplish the same thing as splitting the roles of chairman and chief executive. This may be achieved by imbuing the said director with power to supercede the chief executive and chairman in the event of a conflict between both parties. The lead director may also operate as a mediator in the event of any dispute arising between the chairman and the chief executive.

Milton & Cross Solicitors provides corporate governance advisory services to individuals desirous of establishing sustainable organisations. We have successfully advised corporates operating in the oil and gas, FMCG and technology sectors in creating and reorganising their corporate structures. Please contact us on +2348036258312 or by email at miltoncrosslexng@gmail,com

INJUNCTION RESTRAINS FRCN FROM HEARING ON NEW CORPORATE GOVERNANCE CODE

Posted on May 23, 2015 by admin in Compliance, Corporate Governance, Development, Personal Finance

Justice O.E Abang of the Federal High Court, Ikoyi, on Thursday 14^th May, 2015 stopped further processes relating to the draft corporate governance code released by the Financial Reporting Council of Nigeria (FRCN) on April 15, 2015 with a 30-day window for stakeholders to comment on the 133-page document, ahead of a planned public hearing on May 19, 2015.

The presiding judge, at the hearing of the ex parte application for injunction brought by Timothy Adesiyan and nine others against the Minister of Trade and Investment and three others , granted the applicants’ ex parte application and ordered that the defendants should maintain status quo and suspend further deliberations, considerations, proceedings, processes and all actions relating to the draft National Code of Corporate Governance (NCCG) 2015, pending the hearing of the motion on notice for injunction.

The judge heard the arguments of the plaintiffs’ counsel, Kemi Pinheiro (SAN) in favour of the ex parte application and thereafter gave a well-considered bench ruling wherein he granted the applicants’ ex parte application. Subsequently, the suit was adjourned to May 20, 2015, for hearing of the plaintiffs’ motion on notice for injunction.

BusinessDay had exclusively reported last week about the fears being expressed by business leaders and investors that the policy document could wield excessive powers over Nigeria’s already challenged private sector, following the deadline for public comments which expired yesterday. According to comments received exclusively by BusinessDay on conditions of anonymity, the NCCG, according to them, may swing the country from one extreme of weak corporate governance to another extreme of excessive regulation.

The NCCG is the government’s comprehensive response to the weak corporate governance environment in Africa’s largest economy, identified as a main cause of the 2008/2009 banking sector crisis. The document promises to harmonise existing codes in the banking, pension, insurance and other sectors into a unified code of rules for board compositions, audit processes, and shareholder protection, among others, which will be regulated by the Financial Reporting Council of Nigeria (FRC).However, business leaders say the convergence of the codes into a one-size-fits-all would miss out on industry specific details or contradict existing industry policies.