1. North West WIN Annual Update Manchester 25 April 2013

2. North West WIN Annual Update Welcome – Ian Wood 25 April 2013

3. TUPE REGULATIONS AND EMPLOYMENT ISSUES UPDATE 2013 EMPLOYMENT Helen Hall

4. TUPE – Current issues (1)  Erosion of service provision change mechanism  Enterprise Management Services Ltd v Connect-Up Ltd and others [2012] IRLR 190 (EAT)  Johnson v Campbell and another UKEAT/0041/12  Argyll Coastal Services Ltd v Stirling and others UKEATS/0012/11  Hunter v McCarrick UKEAT/0617/11 25 April 2013 15537931.1 4

5. TUPE – Current issues (2)  Which employees transfer?  Eddie Stobart Limited v Moreman and others  Argyll  Seawell Limited v Ceva Freight (UK) Limited 25 April 2013 15537931.1 5

6. TUPE - Consultation on proposed changes  Consultation 17 January – 11 April 2013  Proposals include:  repeal of "service provision change" provisions  removal of obligation to provide employee liability information  amending the meaning of 'entailing changes in the workforce' (part of the ETO defence) to cover changes in location of the workforce  dual consultation  Legislation expected October 2013 onwards  Contractual protection key to address uncertainty 25 April 2013 15537931.1 6

7. Employment Tribunal Reform - Fees  Implementation in Summer 2013?  Employment Tribunal fees  Issue and hearing fees  Level 1 – low value claims for sums due on termination (e.g. unpaid wages and PILONs)  Level 2 – all other claims (including unfair dismissal, discrimination, equal pay and whistleblowing)  Application specific fees  EAT fees  Remission scheme 25 April 2013 15537931.1 7

8. Employment Tribunal Reform – Procedures  Changes to the Tribunal procedure rules  Implementation in Summer 2013?  Key changes  Rejection of claim and response  "Sift" stage  Costs – awards above £20,000 no longer need to be referred to the court for assessment  Presenting a response – 5pm deadlines?  Preliminary hearings – to consider both case management and preliminary issues 25 April 2013 15537931.1 8

9. Employment Tribunal Reform – Enterprise and Regulatory Reform Bill  Implementation from Summer 2013 onwards  Key changes in the context of Employment Tribunal reform include  Compulsory pre-claim ACAS conciliation  Protected settlement conversations for ordinary unfair dismissal claims  Settlement Agreements – statutory code of practice and guidance  Change to compensation award cap in unfair dismissal claims  capped at the lower of 1 year's pay and existing limit  Abolish discrimination questionnaires 25 April 2013 15537931.1 9

10. Changes to collective redundancy consultation  Changes to collective redundancy consultation obligations:  Implemented 6 April 2013  90 day minimum consultation period before the first redundancy can take effect is reduced to 45 days where 100 or more employees are affected  Employees on fixed term contracts which have reached their termination point will be excluded from collective redundancy consultation obligations  New ACAS non statutory code of practice 25 April 2013 15537931.1 10

11. OPPORTUNITIES AND RISKS CORPORATE RESTRUCTURING Christopher Roberts

12. Expertise Summary Profile Christopher joined DLA Piper in 2002 as a trainee solicitor, qualifying into the firm's restructuring team in 2004. Christopher specialises in non-contentious aspects of corporate recovery, restructuring, turnaround and insolvency including advising upon administrations, receiverships and liquidations. Other aspects dealt with include advising directors upon their duties and responsibilities in relation to companies facing financial difficulties and acting for purchasers of businesses from insolvent companies. Expertise All aspects of non-contentious insolvency and restructuring including business and asset sales, real estate transactions, landlord and tenant issues, advice on security issues, advising main clearing banks, invoice discounters and factors and insolvency practitioners. Major Transactions Administrations of: MusicZone, Wine Cellar, Passion for Perfume, Weatherseal Windows, Total Fitness and Stanleybet UK Investments/Stanleybet Overseas Investments. 25 April 2013 15537931.1 12

13. Aim and Focus  Aim of update  To highlight certain circumstances where corporate restructuring and/or insolvency procedures may be used to benefit your company's business.  To reduce concerns surrounding corporate restructuring and insolvency  Focus of update  Acquisition of a company's shares followed by a CVA  Sale of a company's business and assets through an Administration process  Avoiding TUPE liabilities  ROT claims and identifying goods  Risk of over-reliance on a single supplier in the current economic climate 25 April 2013 15537931.1 13

14. Acquisition of shares followed by a CVA  CVA (Creditors voluntary arrangement) - process whereby a company proposes an arrangement to its creditors to reorganise its liabilities  Enables a buyer to purchase a company and drop the loss making parts whilst leaving the good parts untouched and intact  Successful, well publicised CVA's include: JJB Sports, Focus DIY, Blacks Leisure, Barratts Shoes and Flannels 25 April 2013 15537931.1 14

15. Acquisition of shares followed by a CVA cont…  DLA Piper was the first firm to bring this product to the market  Our first client to successfully utilise the product acquired the shares in a group of companies holding over 500 retail units and in doing so acquired the benefit of very significant tax losses which were available to be set off against the future profits of the post CVA profitable business  Advantages:  Preservation of tax losses  Less business disruption  Reduces overall liabilities  Avoids the stigma of insolvency? 25 April 2013 15537931.1 15

16. Sale of a company’s business and assets out of Administration  If a CVA is not workable, an asset sale may be a potential alternative  However, risk of an asset sale being challenged as a TUV in a subsequent insolvency and vendor unable to fulfil its obligations under the SPA  An asset sale out of an insolvency procedure, e.g. Administration, may be more desirable for vendors and purchasers:  Preserve goodwill and no break in trading where the sale is pre- packaged  Cherry pick assets without the company's liabilities (except for TUPE liabilities) – though be wary of commercial reality: lack of supply credit going forward and may need to pay sweetner to suppliers  Limit the risk of the sale being challenged and subsequently unravelled as TUV 25 April 2013 15537931.1 16

17. Avoiding TUPE liability on a business purchase  The Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") apply when purchasing a solvent business or a business from an administrator  All employees automatically transfer plus purchaser may also be liable for potential protective awards  However, employees do not automatically transfer in a sale by a liquidator 25 April 2013 15537931.1 17

18. Retention of title "club"  When supplying goods to customers, supply contracts normally contain ROT clauses  If a supplier is unable to identify its goods from an insolvent customer’s stock, then the supplier’s ROT clause will not normally be effective  Admixture of goods  BUT the supplier may be able to defeat an admixture defence if it can prove that it supplied generic stock/raw material to the customer 25 April 2013 15537931.1 18

19. Risk of over-reliance on a supplier  As a result of the current economic climate, suppliers have been forced to reduce prices in order to combat competition  Increasing shift to low stock, just in time models of supply  Many suppliers now rely on volume ordering and customers have reduced their amount of suppliers to increase efficiency  Insolvency of one link in the supply chain can create a domino effect of insolvencies up and down the chain  eg the administration of Woolworths led to the insolvency of Zavvi 25 April 2013 15537931.1 19

20. Risk of over-reliance on a supplier cont…  Insolvency practitioners may seek ransom payments from customers of an insolvent supplier  eg the Land Rover and UPF case:  KPMG threatened to stop supply unless Land Rover paid it £46 million.  Land Rover ultimately paid £15m to £20m for UPF’s debt to replace UPF’s receivers to ensure UPF continued to supply essential parts to Land Rover 25 April 2013 15537931.1 20

21. Early warning signs of a supplier’s insolvency Warning Signs  Missed deliveries  Requests for deposits and up-front payments  Unexpected rise in prices or attempts to renegotiate pricing or terms  Reduction in credit insurance cover  County court judgments and winding-up petitions – DLA Piper can conduct these searches for you Questions to ask the supplier  Have you moved from quarterly to monthly rents?  Have you agreed a time to pay agreement with HMRC? 25 April 2013 15537931.1 21

22. Protect yourself  Methods of dealing with a supplier's insolvency:  Protect yourself by building up stock levels and consider having more than one supplier for key supplies  If a supplier becomes insolvent, customers may have to consider acquiring the supplier's business to avoid costly renegotiation of supply terms or having to make ransom payments to the insolvency practitioner 25 April 2013 15537931.1 22

23. Key Messages  There are ways to purchase distressed businesses and assets in a financially efficient way  A vendor can make the sale of a subsidiary business more attractive to the market  If you are a supplier of generic stock or raw material, you may still be able to recover your goods from an insolvent supplier even if you are unable to identify your specific goods  Be vigilant of supplier distress and protect yourself from ransom demands and other business disruption 25 April 2013 15537931.1 23

24. North West WIN Annual Update INTELLECTUAL PROPERTY David Gardner

25. Contents  Apple v Samsung - who is winning in the UK and the US?  The new European Unified Patent system - what will it mean for you?  The Internet's New Wild West? - an update on who iss applying for new gTLDs and why  Is using your Community Trade Mark in one Member State enough to keep it safe from attack? 25 April 2013 15537931.1 25

26. Apple v Samsung (UK)  In the UK, Apple sued Samsung for infringement of its tablet Registered Community Design  Apple alleged that three Samsung Galaxy tablets had copied its RCD  The High Court found that there were certain similarities:  the front screen  the fact neither had indicator lights or buttons  the "thinness enhancing effect" of the curved sides 25 April 2013 15537931.1 26

27. Apple v Samsung (UK)  However, there were two major differences which meant that the Samsung tablets did not infringe Apple's registered design:  The Samsung tablets were thinner than the Apple tablets  The Samsung tablets had detailing on the back of each of one, whereas the Apple tablets we uniformly smooth 25 April 2013 15537931.1 27 "They [the Samsung devices] do not have the same understated and extreme simplicity which is possessed by the Apple design, they are not as cool, and so the overall impression produced is different".  The verdict of the High Court was upheld by the Court of Appeal

28. Apple v Samsung (US)  In the US it was a different story. Apple sued Samsung for infringement of three patents: 1.US Patent No. 7,469,381 relating to "list scrolling and document translation, scaling and rotation on a touch-screen display" 2.US Patent No. 7,844,915 relating to an "application for programming interfaces for scrolling operations" (zooming, bounce-back on scrolling) 3.US Patent No. 7,864,163 relating to a "method for displaying at least a portion of a structured electronic document" as well as four US "design patents", including one for the "ornamental design for an electronic device", similar to the Registered Community Design referred to above 25 April 2013 15537931.1 28

29. Apple v Samsung (US)  Samsung counterclaimed for infringement of six of its own patents  After a three week trial, a Californian jury gave its verdict: 1.Samsung had infringed all Apple's patents and design patents, except the "ornamental" design patent 2.Apple had not infringed any of Samsung's patents  In the first instance, the jury awarded Apple damages of… 25 April 2013 15537931.1 29 The '889 "ornamental" design patent

30. Apple v Samsung (US) $1.05 billion The fourth largest jury award in a patent case ever… …though a Judge has ordered a new jury trial to re-examine $450 million of the damages Apple was awarded 25 April 2013 15537931.1 30

31. European unified patent system The old European system  Obtaining patent protection in Europe is a cost-intensive procedure  Overall, the acquisition of patent protection in all 27 EU Member States costs around €30k - €40k  The cost of translations is a major factor in this high cost  This is considerably more expensive, even for only the "major" Member States, than it is in economically competing countries such as the US or China The solution?  On 19 February 2013, 24 members of the 27 European Union signed a unified patent court agreement in Brussels, followed by Bulgaria on 5 March 2013 25 April 2013 15537931.1 31

32. European unified patent system  Single European patent seeks to boost the innovative capacity of European industry by streamlining previously fragmented and bureaucratic procedures and decreasing costs  The new unified patent will: 1.be cheaper and more effective than current systems in protecting the inventions of EU businesses 2.provide automatic unitary patent protection in all 25 participating member states, cutting costs for EU businesses 3.cost as little as €4,725 when the new system is fully in place, according to the European Commission  Italy (despite signing the agreement), Spain and Poland have all expressed concerns about the new arrangements 25 April 2013 15537931.1 32

33. New generic Top Level Domains ("gTLDs")  The new generic Top-Level Domain Program was developed by ICANN to increase competition and choice in the domain name space (ICANN just made $350 million in the process!)  There are roughly two dozen gTLDs now (.com,.org,.net, etc).  Soon, there will be hundreds – 2,000 have been applied for  Not a universally popular move by ICANN – a group of over 100 major international business associations and companies campaigned against it…but it's happening! 25 April 2013 15537931.1 33

34. New gTLDs – Who is applying?  Google has announced that it is targeting gTLDs such as.google,.youtube, and.lol, to name a few – at a cost of $185,000 per domain – at a total cost of more than $18.6m  Amazon is Google's biggest competitor, with both companies bidding on 21 of the same domains, including:.search,.play, and.drive  Microsoft also put in two applications that Google has also applied for.docs and.live  Apple applied for just one (.apple, of course)  So why are they applying? 25 April 2013 15537931.1 34

35. New gTLDs – Potential benefits  You operate a domain name registry, like.com today  You have greater control and flexibility over your web presence  The new gTLD create opportunities for company specific or sector specific domains  They could be used to increase security -.dlapiper?!  They could be used to increase brand profile (though some notable brand owners have withdrawn, e.g. Heinz, G.M.)  They may help in the fight against online counterfeiters – "If it doesn’t end in.[brand], it's not real"  This does come at an administrative and financial cost – ICANN will evaluate applicants on this basis 25 April 2013 15537931.1 35

36. New gTLDs – Protecting your trade marks  The "Trademark Clearinghouse" opened on 26 March 2013 to allow rights holders to file evidence of their trade marks  Sunrise period – trade mark holders who registered with the Clearinghouse were given 30 days to register gTLDs matching their trade marks before these were offered to the public  The Clearinghouse provides a central repository of verified trade mark data, to avoid the need to notify every gTLD owner  Requirements  You must provide a signed declaration of use and a single sample to prove use  Clearinghouse fees for a single trade mark are $145 for one year, $435 for 3 years and $725 for 5 years 25 April 2013 15537931.1 36

37. New gTLDs – Protecting your trade marks  A number of speculators have also been purchasing gTLDs, hoping this will be the next internet gold mine  For example, one VC-funded company called Donuts has applied for 307 gTLDs – at a cost of almost $57 million  ICAAN has established additional dispute resolution procedures (known as RPMs) in connection with gTLDs  This includes the Universal Rapid Suspension system (or URS), intended to deal with clear cases of trade mark abuse 25 April 2013 15537931.1 37

38. Use of community trade marks  The ECJ has recently handed down its decision in Case C- 149/11 Leno Merken v Hagelkruis Beheer B.V  Better known as the ONEL/OMEL case  The case is about the requirement for "genuine use" of a Community Trade Mark ("CTM")  A CTM which has not been put "to genuine use in the Community in connection with the goods or services in respect of which it is registered" within five years following registration:  is subject to revocation  cannot be relied on as an earlier trade mark right when opposing a later filed CTM 25 April 2013 15537931.1 38

39. Community trade marks – CJEU referral  So what constitutes "genuine use in the Community"?  In particular, what if a trade mark is only used in one of the 27 Member States - is this genuine use?  The four questions referred to the CJEU in this case were: 1.Is use in one country always enough? 2.If not, is it never enough? 3.If it is never enough, what is needed? 4.Should the assessment of genuine use in the Community be done in the abstract, without reference to the borders of the territory of the individual Member States? 25 April 2013 15537931.1 39

40. Community trade marks - Decision  The CJEU held that Article 15(1) of the Community Trade Mark Regulation must be interpreted as meaning that:  use of a Community trade mark within the borders of a single Member State is not, of itself, necessarily sufficient to constitute genuine use of that trade mark, BUT  it is possible that, when account is taken of all relevant facts, use of a Community trade mark within an area corresponding with the territory of a single Member State will constitute genuine use in the Community  Has the ECJ dodged the question, or is this answer the pragmatic solution needed by CTM owners and their advisors? 25 April 2013 15537931.1 40

41. North West WIN Annual Update TAX David Thompson

42. Patent Box 1  Reduced rate of 10% for companies within the charge to UK corporation tax who exploit patents and/or certain other botanical and medical innovations  Companies must opt into the regime for it to apply and the relief is to be phased in between 1 April 2013 and 1 April 2017  The reduced rate of corporation tax is applied to a proportion of the company's profits derived from:  sales of products incorporating the patented technology  licensing and selling patent rights themselves  other use of such right sin the course of a trade (e.g. in providing services)  compensation for infringement of patent rights 25 April 2013 15537931.1 42

43. Patent Box 2  The company must have an "exclusive" licence over the qualifying IP in one or more countries or territories.  The company must have been involved significantly in the creation or development of the qualifying IP, or of a product or process that incorporates it.  There are special rules for groups aimed at preventing relief where the IP was developed outside the group (e.g. where a company that developed the IP is subsequently acquired by another company), unless certain further activity is carried out within the group or an additional "active ownership" condition is satisfied.  Patent box profits are calculated according to a standard formula (see next slide) or a "streaming method" 25 April 2013 15537931.1 43

44. Patent Box 3 Stage One (Identify Profit) (1) Calculate Gross Trading Income ("TI")) (2) Calculate relevant IP Income ("RIPI") as a proportion of TI (3) Calculate percentage of trade profits (or losses) attributable to RIPI Stage Two (Deduct Routine Return) (4) Deduct Routine Return to give Qualifying Residual Profit ("QRP") Stage Three (Deduct Brand Value) (5) Opt for Small claims Treatment (if appropriate) (6) deduct Marketing Asset return from QRP 25 April 2013 15537931.1 44

45. Patent Box 4 Patent Box – Practice Points for In-House Lawyers  The ownership of patent rights and other qualifying IP will affect the availability of relief:  whether a company opts into the patent box may depend upon whether it is making profits or losses;  this and other factors may influence a decision whether or not to move IP around the group;  the effect of litigation settlements and licensing arrangements will be relevant for determining whether the company has an "exclusive" right enabling it to claim relief;  it may be beneficial to bring qualifying IP into the UK and to relocate development here. 25 April 2013 15537931.1 45

46. Statutory Residence Test 1  Statutory Residence Test ("SRT") is contained in schedule 43 of the Finance Bill and replaces the previous mix of case law and HMRC practice (HMRC's approach was set out in HMRC6) for tax years 2013-14 onwards;  SRT  if automatic non-residence test is satisfied, the individual is not resident;  if the automatic residence test is satisfied, the individual is resident;  where neither of these applies the individual is resident if he or she has "sufficient ties" with the UK, which test depends on "connecting factors" and days spent in the UK – the more "connecting factors" the fewer days are required to make a person resident 25 April 2013 15537931.1 46

47. Statutory Residence Test 2 Automatic Non-Residence – always takes precedence 25 April 2013 15537931.1 47 TestDays in UK UK resident in one or more of 3 previous tax years < 16 (and did not die here!) UK resident for none of previous 3 tax years < 46 Sufficient overseas work with no significant breaks (complex formula) < 31 days in UK where more than three hours' work done and < 91 days spent in UK Two other automatic tests apply in the event of death

48. Statutory Residence Test 3 Automatic Residence – next test to apply 25 April 2013 15537931.1 48 TestDays in UK Present in UK for 183 days in tax year No additional "days" test "Home" in the UKSpends sufficient days in that home and satisfies requirements in relation to overseas home (if any) – complex rules Sufficient UK hours of work with no significant breaks Complex rules here too! A fourth automatic test applies in the event of death

49. Statutory Residence Test 4 "Sufficient Ties" where resident in one or more of previous three tax years 25 April 2013 15537931.1 49 Days spent in the UKMinimum number of ties Greater than 15 but not more than 45 4 More than 45 but not more than 903 More than 90 but not more than 120 2 More than 1201

50. Statutory Residence Test 5 "Sufficient Ties" where not resident any of previous three tax years 25 April 2013 15537931.1 50 Days spent in the UKMinimum number of ties More than 45 but not more than 904 More than 90 but not more than 120 3 More than 1202

51. Statutory Residence Test 5 25 April 2013 15537931.1 51 The "UK ties" "Family"- "relevant relationship" with another person resident in the UK "Accommodation" – a "place to live" in the UK for at least 91 days and spends at least one night there "Work" – at least 40 days working for at least three hours on each such day in the UK "90-day tie" – spends more than 90 days in the UK in the preceding tax year, the tax year preceding that year or both "country" tie (only applies if resident for one or more of previous three tax years) – meets the "midnight test" for the greatest number of days in the UK (compared to each other country)

52. Statutory Residence Test 6 25 April 2013 15537931.1 52 The rules are complex and the slides above are an over- simplification! SRT – Practical Points for In-House Lawyers  Patterns of work for multi-state employees may change  Old contracts and methods of working may need to be reconsidered  There will be a constant need to take tax advice on the impact of detailed personal and employment circumstances  Double taxation relief rules still apply

53. General Anti-Abuse Rule  The General Anti-Abuse Rule (GAAR) will apply to income tax, corporation tax, capital gains tax, inheritance tax, petroleum revenue tax and stamp duty land tax (it is later to be extended to NIC)  The GAAR will provide for the counteraction of tax advantages arising from tax arrangements that are "abusive"  Counteraction must first be notified by a designated HMRC officer and, unless having considered representations made by the taxpayer a designated HMRC officer decides that counteraction ought not to apply, the arrangements must be referred to an "Advisory Panel" to be established by the Commissioners for HMRC for the purpose, for its opinion. 25 April 2013 15537931.1 53

54. General Anti-Abuse Rule "Tax arrangements are “abusive” if they are arrangements the entering into or carrying out of which cannot reasonably be regarded as a reasonable course of action in relation to the relevant tax provisions, having regard to all the circumstances including— (a) whether the substantive results of the arrangements are consistent with any principles on which those provisions are based (whether express or implied) and the policy objectives of those provisions, (b) whether the means of achieving those results involves one or more contrived or abnormal steps, and (c) whether the arrangements are intended to exploit any shortcomings in those provisions" 25 April 2013 15537931.1 54

55. General Anti-Abuse Rule Statute will set out examples of arrangements that are to be considered "abusive"  they result in an amount of income, profits or gains for tax purposes that is significantly less than the amount for economic purposes  they result in deductions or losses of an amount for tax purposes that is significantly greater than the amount for economic purposes  they result in a claim for the repayment or crediting of tax (including foreign tax) that has not been, and is unlikely to be, paid. Practical Point for In House Lawyers – difficult dividing line between "abusive" and non-abusive structures – scrutiny required 25 April 2013 15537931.1 55

56. Miscellaneous Points to Remember  Entrepreneur's relief for shares acquired under an enterprise management incentive scheme – always consider EMI if you qualify.  VAT and acquisition costs – following BAA –v- HMRC [2013] EWCA Civ 112 – taxpayer lost its claim to recover input tax on incurred on professional fees invoiced to a company which acquired it and subsequently became a member of its VAT group; the case underscores the need for a holding company to have an "economic activity", to make,or to intend to make, supplies in the course of a business.  VAT – Robinson Family Limited –v- HMRC [2012] UKFTT 360(TC) – grant of a long lease subject to sub-leases can be a TOGC if value of reversion is minimal. 25 April 2013 15537931.1 56

57. North West WIN Annual Update HOT TOPICS IN THE ENERGY SECTOR Ian Wood, Darren Walsh and Andrew Davies

58. RENEWABLE HEAT INCENTIVE (RHI) Ian Wood 25 April 2013

59. Background  Government scheme to promote renewable energy for heat generation  Launched 2011  Payments to businesses, organisations and communities that generate and use renewable energy to heat their buildings AIM = to help UK reduce greenhouse gas emissions and meet climate change targets 25 April 2013 15537931.1 59

60. Renewable energy sources  The following are currently covered by the RHI  Biomass (boilers and energy from waste)  Ground and water source heat pumps  Geothermal  Solar thermal  Biogas combustion  Biomethane production 25 April 2013 15537931.1 60

61. Eligibility criteria  England, Scotland or Wales (not N. Ireland)  Technology installed and commissioned on or after 15 July 2009  New equipment  Minimum capacity requirements  Not purchased using public grant (option to pay back if installed before 28 November 2011)  MCS (Microgeneration Certification Scheme) or equivalent  Heat delivered via liquid or steam  Inside a building (due to be extended to external uses of heat)  NOT single home heating  Other technology-specific criteria 25 April 2013 15537931.1 61

62. Payments  Spread over 20 years = long-term incentive  Pay every quarter  Tariff dependent upon  technology used  heat production capacity  energy consumption of participant Examples (from 1 April 2013)  Solar thermal collections (<200 kWh capacity) = 9.2p per kWh produced  Small biomass (<200 kWh capacity) = 8.6p per kWh produced (Tier 1) or = 2.2p per kWh produced if energy consumption above threshold (Tier 2) 25 April 2013 15537931.1 62

63. How to apply  Online account at Ofgem website (www.ofgem.gov.uk)  Provide evidence of installation  Eligibility assessment by Ofgem  Annual reporting NB – suspension of scheme to new entries possible if 97 per cent of annual budget met  currently £67.9 million  projected payments last financial year = £24 million 25 April 2013 15537931.1 63

64. Future updates  Tariff changes (including mechanism for reduction of payment if uptake triggers met)  Introduction of further technologies  bioliquids  landfill gas  air source heat pumps  Air quality (biomass)  end of 2013  Biomass sustainability  April 2014  Domestic scheme  summer 2013 25 April 2013 15537931.1 64

65. Further information  Ofgem website (www.ofgem.gov.uk/e-serve/RHI/Pages/RHI.aspx)  Enquiry helpline  0845 200 2122  rhi.energy@ofgem.gov.uk 25 April 2013 15537931.1 65

66. RENEWABLE ENERGY INCENTIVE SCHEMES ROCs and FITs Andrew S Davies 25 April 2013

67. Renewables Obligation (1)  Obligation on licensed electricity suppliers to source a specified proportion of the electricity they provide from eligible renewable sources  Statutory obligation – Renewables Obligations Order 2009 (as amended)  Steadily increasing proportion (initially set at 3% in 2002, currently up to approximately 20%)  Fixed target each year based on MWh of electricity supplied – e.g. 0.158 ROCs per MWh energy supplied for year ending 31 March 2013 rising to 0.206 ROCs per MWh energy supplied for current year ending 31 March 2014 25 April 2013 15537931.1 67

68. Renewables obligation certificates (ROCs)  Issued by Ofgem to eligible renewable energy generators  ROCs are tradeable commodity with fluctuating value – average March 2013 price = £43.76  ultimately sold to suppliers to help meet their obligation commitments  number issued depends upon  amount of electricity generated  technology used (banding system)  'degression' of banding levels over time BUT 'grandfathering'  generator retains same banding as when entered scheme  fixed level of support  provide extra financial incentive to energy generators if generating via eligible renewable source 25 April 2013 15537931.1 68

69. RO – meeting the obligation  obligation met by:  purchasing ROCs from generators on open market then presenting ROCs to Ofgem  generating own electricity from eligible renewable sources – receive own ROCs which present to Ofgem  paying 'buy-out' penalty to cover shortfall 25 April 2013 15537931.1 69

70. ROCs – energy sources  Eligible renewable sources include (but not limited to):  Anaerobic digestion  Biomass  Energy from waste with combined heat and power  Geothermal  Hydro  Solar photovoltaic  Tidal  Wind 25 April 2013 15537931.1 70

71. ROCs – the future  Last available entry date 31 March 2017  Participants in scheme for 20 year period (up to 31 March 2037)  From 31 March 2027:  ROC price fixed by government  Direct purchase from generators by government  Aim to reduce market volatility 25 April 2013 15537931.1 71

72. Feed-in Tariffs (FITs)  Introduced 1 April 2010  Small scale systems  no greater than 5 MW total installed capacity  organisations, businesses, communities and individuals  eligible technologies  solar photovoltaic  wind  hydro  anaerobic digestion  micro combined heat and power (up to 2 kV capacity only) 25 April 2013 15537931.1 72

73. FITs – what are they?  Payments  generation tariff – for electricity produced  export tariff – for surplus electricity exported to the grid  Payments  over 25 years (solar)  over 20 years (wind, hydro, anaerobic, digestion)  over 10 years (micro CHP)  'Degression' of tariffs from April 2012 BUT generators receive prevailing tariff from time to time 'commissioned'  Not a replacement for ROCs – choice of one or the other required 25 April 2013 15537931.1 73

74. FITs – current tariff rates  Range of current tariffs dependent upon energy type and capacity of generator (higher rates for lower output systems)  solar PV = 9.24 to 15.16p/kWh  hydro = 3.23 to 21.65p/kWh  wind = 4.15 to 21.65p/kWh  anaerobic digestion = 6.85 to 15.44p/kWh  Note that little to no degression seen with anaerobic digestion tariffs in latest prices (compared to notable degression with e.g. wind) 25 April 2013 15537931.1 74

75. FITs v ROCs – the choice  No choice if:  very small - only FITs if below 50KW capacity  very large - only ROCs if greater than 5MW capacity  Otherwise make a one-off choice (included following lobbying by energy sector)  Increased certainty of fixed price of FITs – may encourage investors looking for fixed income  ROCs subject to fluctuating market - greater rewards when high demand  ROCs tend to suit larger organisations re fluctuations in price  ROCs no longer registrable for after 31 March 2017 Note : importance of date of 'commissioning' for both schemes 25 April 2013 15537931.1 75

76. CRC ENERGY EFFICIENCY SCHEME Darren Walsh 25 April 2013

77. Introduction  Mandatory scheme  Public and private sector organizations  AIM = "to improve energy efficiency and reduce CO 2 emissions in large organisations"  Administered by environmental agencies (EA, SEPA. NIEA, Natural Resources Wales)  Currently in last year of phase 1 (due to end 31 March 2014) and first year for phase 2 25 April 2013 15537931.1 77

78. Qualification – who must participate?  Based on qualifying electricity consumption in qualifying year (April 2008 – March 2009 for phase 1)  Whole organisation  Criteria  at least 1 x half-hourly electricity meter  use 6,000+ MWh electricity in qualifying year 25 April 2013 15537931.1 78

79. Registration  Highest UK parent undertaking  Significant group undertakings ("SGU")  defined at time of qualification only  could meet qualification criteria in own right  can disaggregate  register as participant itself  at registration or within three months of purchase by another participant 25 April 2013 15537931.1 79

80. Reporting  Footprint report  during first phase year e.g. for phase 1 = April 2010- March 2011, for phase 2 = April 2013 - March 2014  Annual report  by last working day in July after compliance year e.g. by end of July 2014 for year ending 31 March 2014 -gas and electricity supplied and consumed (unless landlord-tenant rule (landlord responsible if receives/pays for supply) or franchise) - CRC emissions calculated -purchase and surrender allowances  Designated changes eg purchase of SGU from another participant  BUT not required if EXCLUSION or EXEMPTION 25 April 2013 15537931.1 80

81. Exclusions  No need to report for:  outside UK  'domestic accommodation' – premises intended to be used as a permanent home – note that hospitals, hotels etc. are included in CRC scheme and not considered to be 'domestic'  third party supplier heat  most forms of transport  already covered by EU Emissions Trading Scheme e.g. commercial aviation, energy-intensive industries such as iron manufacturing and oil refineries 25 April 2013 15537931.1 81

82. Exemptions  If already covered by climate change agreement (CCA) then may be subject to exemption 1)GENERAL (Article 33 of CRC Energy Efficiency Scheme Order 2010 (the "CRC Order")  not group  CCA emissions >25 per cent total emissions  lose exemption in subsequent years if conditions don't apply 2)MEMBER (Article 32 of CRC Order)  group  a member of that group has CCA emissions >25 per cent of that member's total emissions  member only exempt 25 April 2013 15537931.1 82

83. Exemptions 3)GROUP (Article 34 of CRC Order)  total electricity to all members group not subject to member exemption <1,000 MWh  lasts for rest of phase – not lost unless loss of a member exemption causes conditions not to apply 25 April 2013 15537931.1 83

84. CRC Scheme – where are we now?  Last year phase 1 (provisions (including exemptions) still apply)  First year phase 2  qualification based on position as at 31 March 2013  key date  New legislation due by June 2013  Transition – uncertainty for participants already in scheme as to whether the Phase 1 or Phase 2 rules will apply to this reporting year 25 April 2013 15537931.1 84

85. CRC Scheme Phase 2 – main changes (1)  Looking to simplify the scheme  Based on guidance issued by Environment Agency  Qualifying electricity only if supplied via settled half hourly meters i.e. those able to measure electricity supply on a half hourly basis  Unconsumed supply – if pass on unconsumed supply to third party, will remain responsible for that supply under CRC scheme unless there is a meter measuring that supply to the third party 25 April 2013 15537931.1 85

86. CRC Scheme Phase 2 – main changes (2)  Alteration to applicability of landlord-tenant rule:  phase 2 position = rule no longer applies to construction leases i.e. 30+ years, specific lessee covenants re. utilities installation, consent for building, removal of works/buildings at lease termination, lessor covenant to compensate for improvements made  CCA  all electricity/gas used to operate a certified CCA facility will be excluded  CCA exemptions no longer apply  KEY = define the boundaries of your CCA Facilities 25 April 2013 15537931.1 86

87. Conclusions  Important for any high energy-consumption business  Transition between phases  CCA exemptions no longer apply for Phase 2  Watch this space re. new legislation and guidance due – see EA website for details  We can assist with quick audit of Phase 1 compliance and the implications for Phase 2 25 April 2013 15537931.1 87

88. Coffee Break 18 April 2013

89. North West WIN Annual Update COMMERCIAL Claire Edwards

90. Overview - lots of new cases!  Endeavours  Ampurius Nu Homes v Telford Homes  Liability  Kudos Catering v Manchester Central Convention Complex  Material Breach, Termination and Affirmation  The Trademark Licensing Co Ltd v Leofelis SA  Good Faith  Compass Group UK & Ireland Limited v Mid Essex Hospital Services NHS Trust  Yam Seng Pte Ltd v International Trade Corp Limited  The Late Payment of Commercial Debts Regulations 2013 25 April 2013 15537931.1 90

91. Endeavours - Ampurius Nu Homes v Telford Homes (2012) 25 April 2013 15537931.1 91 "Telford will use its reasonable endeavours to procure completion of the Works by the Target Date or as soon as reasonably possible thereafter" The credit crunch intervened and Telford was unable to obtain sufficient funding, suspended work and claimed this was not a breach provided it had used reasonable endeavours to obtain funding but had been unable to do so Held Lack of funding was not a defence Reasonable endeavours was designed to cover physical conduct of the work e.g. inclement weather and shortage of materials The subjective difficulty that Telford experienced in raising funding was irrelevant

92. Endeavours 25 April 2013 15537931.1 92 An "endeavours" obligation will not always impose the same level of obligation from one contract to another Reasonable – does not require the action if it disadvantages the party; only one reasonable course is required, not all reasonable courses Best – Onerous but not absolute; take all steps a prudent, determined and reasonable party is acting in its own interests and desiring to achieve the result; may impose an obligation to invest or run risk of failure but not require risk of bankruptcy All reasonable – compromise between best and reasonable (closer to best); use endeavours until all reasonable alternatives are exhausted Conclusion – be clear about the objective to be achieved and list steps to be taken?

93. Liability – Kudos Catering v Manchester Central Convention Complex (2013) 25 April 2013 15537931.1 93 18.6 Indemnity and Insurance "MCCC shall have no liability whatsoever for any loss of goodwill, business, revenue or profits, anticipated savings or wasted expenditure." 5 year catering contract ended 2 years early. Both claimed repudiatory breach. Kudos claimed £1.3m of lost profit

94. Liability – Kudos Catering v Manchester Central Convention Complex (2013) 25 April 2013 15537931.1 94 Kudos would have earned profit. If upheld then the clause could deprive Kudos of any sanction for MCCC's breach of contract, reducing the contract to an unenforceable statement of intent MCCC had not put forward a commercial justification for such a wide exclusion of liability. CoA concluded there was none, and that a literal interpretation of clause 18.6 would be contrary to business common sense Held that the clause applied only to MCCC's liability for defective performance, not for a refusal to perform CoA held – loss of profits was not excluded. Need to consider the wider context and parties commercial intentions.

95. Liability – Lessons 25 April 2013 15537931.1 95 Lessons? Give a remedy for material breaches Explain why a clause is drafted in a particular way Flag onerous provisions e.g. use correct headings Cover liability on repudiation expressly

96. Material Breach, Termination and Affirmation 25 April 2013 15537931.1 96 Repudiatory breach – is the breach of contract sufficiently material to allow the innocent party to treat the contract as at an end and claim damages If A relies on B's alleged repudiatory breach and terminates, and the basis for termination turns out to be untrue, the non-terminating party may itself sue for wrongful termination After acquired knowledge of a (different) repudiatory breach can be used to justify the termination (Boston Deep Sea Fishing case) What about damages?

97. The Trademark Licencing Co Ltd v Leofelis SA (2012) 25 April 2013 15537931.1 97 Use of the Lonsdale brand in Europe, exclusive licence granted but Lonsdale licenced another person in Germany While a party can use after acquired knowledge of a repudiatory breach to justify the termination, they cannot use the same repudiatory breach as a ground for claiming damages Where terminating party unaware of the repudiatory breach and termination would have happened in any event, terminating party not entitled to profit from the decision to terminate by some later emergence of fact Ensure repudiatory breach has occurred before taking steps to terminate a contract Loss can only be claimed if it flows from the breach that the party had knowledge of

98. Good faith – an implied duty? Background  Traditional hostility towards an implied doctrine of good faith  Many civil law jurisdictions, and more recently Canada, Australia and the US recognise a general duty to act in good 25 April 2013 15537931.1 98 faith when forming and performing commercial contracts  Scots law recognises a broad principle of good faith and fair dealing  EU legislation has increased significance of the concept of good faith in English Law Are we moving towards English courts applying an implied duty of good faith to English contract law in certain circumstances?

99. Mid Essex NHGS v Compass Group (trading as Medirest) [2013]  Hospital FM Outsourcing Agreement  Payment mechanism based on performance  Financial deductions:  £84,450 – out of date chocolate mousse  £96,060 – 3 day old bagels  £46,320 – out of date ketchup sachets  Express obligation to "co-operate with each other in good faith…and take all reasonable action as is necessary for…the Trust…or any Beneficiary [e.g. patients] to derive the full benefit of the Contract".  An implied term that the Trust would not exercise its discretion to award itself payment deductions or service failure points arbitrarily, capriciously or in an irrational manner? 25 April 2013 15537931.1 99

100. Compass – Take away points  The express obligation in this context to co-operate in good faith means "work together honestly endeavouring to achieve the two stated purposes"  While discretions involving absolute contractual rights are unlikely to be subject to an implied term of the type at issue, those involving an assessment or a choice as to the range of options in which the interests of both parties are relevant, are likely to be  Although you may be able to expressly exclude the implied term, Jackson LJ warned that doing so would be "extremely difficult" 25 April 2013 15537931.1 100

101. Yam Seng PTE Ltd v International Trade Corp Ltd (2013) 25 April 2013 15537931.1 101 Exclusive distribution agreement to YS YS terminated for ITC's repudiatory breach failure to supply product beach of exclusive territorial grant provision of false information YS pleaded an implied term in the agreement that parties would deal with each other in good faith Held: D was in breach of contract and 2 breaches were repudiatory in nature, justifying termination by YS

102. An implied term (obiter – Leggatt J)?  Judge acknowledges existence of such an implied term in certain contracts (employment/partnership)  No general duty of good faith under English law  No difficulty in implying such a duty based on the presumed intentions of the parties  context sensitive "Relational contracts" [joint venture agreements, franchise agreements and long term distribution agreements] may require a high degree of communication, cooperation and predictable performance based on mutual trust and confidence and … expectations of loyalty which are…implicit.. and necessary to give business efficacy to the arrangements"  Question of fact to be decided on a case by case basis 25 April 2013 15537931.1 102

103. The Late Payment of Commercial Debts Regulations 2013 ("2013 Regulations") 25 April 2013 15537931.1 103  The 2013 Regulations came into force on 16 March 2013 and resulted in amendments to the Late Payment of Commercial Debts (Interest) Act 1998 ("Late Payment Act")  Changes to sections 4 and 5A of the Late Payment Act  Contracts concluded before 16 March 2013 will be excluded from the amended provisions  Debtors will be forced to pay interest and reimburse reasonable recovery costs of the creditor, if they do not pay for goods and services on time

104. The Late Payment of Commercial Debts Regulations 2013 ("2013 Regulations") Business to Business contracts Contract is silent on payment terms Interest will accrue unless payment is made within 30 days of the later of: (i)receipt of invoice (ii)receipt of goods or services (iii)verifying acceptance of the goods or services Contract contains express payment terms If parties agree a payment date up to 60 days from the later of: (i)receipt of invoice (ii)receipt of goods or services (iii)verifying acceptance of the goods or services Interest will accrue from that date. This 60 day period can be extended so long as it is in writing and not "grossly unfair". Grossly unfair – all circumstances considered in particular: deviation from good commercial practice and contrary to good faith and fair dealing; the nature of the goods and services; another objective reason 25 April 2013 15537931.1 104

105. The Late Payment of Commercial Debts Regulations 2013 ("2013 Regulations") Business to Public Authority contracts Contract is silent on payment terms Interest will accrue unless payment is made within 30 days of the later of: (i)receipt of invoice (ii)receipt of goods or services (iii)verifying acceptance of the goods or services Contract contains express payment terms If parties agree a payment date of more than 30 days from the later of: (i)receipt of invoice (ii)receipt of goods or services (iii)verifying acceptance of the goods or services Interest will still accrue after the 30 days No possibility to extend this period 25 April 2013 15537931.1 105

106. The Late Payment of Commercial Debts Regulations 2013 ("2013 Regulations") 25 April 2013 15537931.1 106  Verification process introduced: maximum period of up to 30 days for a purchaser to confirm that goods or services conform with the contract  Statutory interest rate: Unchanged - Bank of England reference rate plus at least 8%  Compensation for recovery costs: In addition to fixed sums that were previously available (£40, £70 or £100 depending on the size of the debt) to compensate for the cost of recovering a debt, as a result of the 2013 Regulations the supplier is also entitled to the reasonable costs of recovering the debt that are not met by the fixed sum  The rights for a supplier under the Late Payment Act are not compulsory – it does not have to claim interest

107. Cost Reforms LITIGATION Jonathan Eatough

108. The Jackson Reforms  The "Big Bang" on 1 April 2013  What does this mean for commercial litigation? 25 April 2013 15537931.1 108

109. Proportionality  Lies at the core of the reforms  The new rules on proportionality come into force on 1 April 2013 but will not apply to:  cases commenced before 1 April 2013  work carried out before 1 April 2013 in cases which are commenced after that date  New CPR 44.3(5) - disproportionate costs will no longer be recoverable even if they were necessarily incurred  New overriding objective - to deal with cases "justly and at proportionate cost"  Implications  greatest impact on low to medium value cases  parties will end up bearing more of their own costs  affect directions - approach to disclosure, number of witnesses, expert evidence 25 April 2013 15537931.1 109

110. Costs & Funding  Costs  introduction of court-controlled budgeting  up-front mini-assessment of costs  budget is a cap on the costs that a successful party can recover from the losing party unless there is "good reason"  Funding  CFA's - abolition of recovery of success fees and ATE premiums from the losing party  introduction of contingency fee/damage based agreements 25 April 2013 15537931.1 110

111. Disclosure  Introduction of a "menu" of disclosure options  Applies to multi-track cases only where first CMC is on or after 16 April 2013  Implications:  forward planning - need to be in a position to agree an approach to disclosure by the first CMC requiring a good grasp of documents  budget - new CPR 31.5(3)(iii) requires a disclosure report, including an estimate of the cost of disclosure, to filed and served 14 days before the first CMC  co-operation - parties and their lawyers need to work together at an early stage to attempt to manage disclosure 25 April 2013 15537931.1 111

112. Part 36  Introduction of a new "additional sanction" for defendants who fail to beat a claimant's Part 36 made on or after 1 April 2013  Percentage of the damages or costs awarded as follows:  10% for amounts up to £500,000  5% for amounts above £500,000 up to £1m  The maximum "additional sanction" is capped at £75,000  To incentivise claimants to make offers  Consider reviewing/making a Part 36 offer to take advantage of new sanction 25 April 2013 15537931.1 112

113. Experts  Increased focus on expert issues to control and limit expert evidence  From 1 April 2013 in order to receive permission for expert evidence you must:  provide an estimate of the costs (to be included in the budget)  identify the issues to be addressed  Introduction of "Hot-tubbing"  Implications:  identify issues to be determined by expert evidence early on  obtain an estimate of the cost of expert evidence early on  consider whether "Hot-tubbing" is appropriate 25 April 2013 15537931.1 113

114. North West WIN Annual Update REGULATORY John Gollaglee

115. Health and Safety Fee for Intervention Corporate Manslaughter

116. Fee for Intervention (HSE)  Cost recovery for previously free advice provided by Health and Safety Inspectors  In force October 2012  Only applies to premises regulated by the Health and Safety Executive (not local authority or environmental health officer regulated premises)  Current hourly rate is £124 (no VAT charged) 25 April 2013 15537931.1 Purpose  Designed to make those who breach health and safety legislation pay for the costs of correcting their breach 116

117. Fee for Intervention (HSE) (2) Application  Applies to almost all businesses and same hourly rate charged irrespective of size  Costs split where multi-dutyholder intervention occurs Scope  Costs charged in respect of  carrying out visits  writing notification of contraventions (including improvement and prohibition notices and preparing reports)  taking statements  getting specialist input for complex issues and  office work in support of the above 25 April 2013 15537931.1 117

118. The material breach test  Fee for Intervention can only be charged where the HSE Inspector believes there has been a "material breach" of the legislation. "A material breach is where you have broken a health and safety law and the inspector judges that this is serious enough for them to notify you in writing" 25 April 2013 15537931.1 118

119. An 'appeal'?  It is possible to 'appeal' against a Fee for Intervention invoice  Level One 'query' (within 21 days)  Invoice is reviewed by an HSE Senior Manager (independent of the line management which generated the invoice)  Level Two 'dispute' (within 21 days of the reply to the 'query')  Invoice is reviewed by a panel of HSE Staff and an independent representative.  All HSE costs incurred in handling the dispute must be met by the duty holder, unless the dispute is upheld. 25 April 2013 15537931.1 119

120. Fee for Intervention – Prosecutions  Is there a problem created by paying a Fee for Intervention invoice?  Does payment of Fee for Intervention invoice constitute acceptance of a "material breach"?  Does acceptance of a "material breach" preclude an effective trial in due course? 25 April 2013 15537931.1 120

121. Corporate Manslaughter – where are we now?  Past prosecutions  Cotswold Geotechnical (Holdings) - £385,000  MW Farms - £187,500  Lion Steel Limited - £480,000 Note: Sentencing Council Guidelines state that a fine of £500,000 is usually the starting (lowest) point for the court  Current prosecutions  PS & JE Ward  MNS Mining Limited  Mobile Sweepers (Reading) Limited  The future? 25 April 2013 15537931.1 121

122. Corporate Crime and investigations Defence legal costs Bribery Act 2010

123. Recovery of Legal Defence Costs abolished  The change  Rules on Defence Costs Orders amended  Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012  In force October 2012  The impact  In any criminal proceedings involving a defendant company commenced after 01 October 2012, any defence costs order made cannot include legal costs incurred by a company (unless proceedings are in the Supreme Court).  The response  The importance of adequate legal defence costs insurance and nomination  Or, a 'fighting fund' 25 April 2013 15537931.1 123

124. Bribery Act 2010  In force since July 2011  Enforcement Activity  not a single corporate prosecution  two prosecutions of individuals  prosecutors have continued to consider and finalise bribery and corruption investigations involving facts that pre-date the Bribery Act  Under the Surface  Civil Settlements – Rolls Royce and others  result of internal investigations  significant impact on M&A activity 25 April 2013 15537931.1 124

125. North West WIN Annual Update REAL ESTATE Steven Jennings

126. General Overview  There have been no significant changes in legislation in relation to Real Estate over the last 12 months  But the case law continues to reflect the economic climate  Conditional break clauses  Business rates on empty property 25 April 2013 15537931.1 126

127. Tenant's break options  Options – strict compliance needed  Conditions eg:  compliance with covenants – "material", "substantial" etc  payment of a premium  rent and service charges up to date  vacant possession 25 April 2013 15537931.1 127

128. Recent cases Rent etc up to date  Avocet Industrial Estate –v- Merol  tenant failed to pay £130 in default interest – lease continued  PCE Investors –v- Cancer Research UK  break date 11 October  break required tenant to pay rent up to date  tenant paid rent apportioned from quarter day (29 September) to 11 October  not sufficient – full quarter's rent should have been paid 25 April 2013 15537931.1 128

129. Vacant possession NYK Logistics –v- Ibrend Estates  80,000 sq. ft. warehouse and office block  giving vacant possession a condition of tenant's break  tenant's contractors on site doing dilapidations work after break date  tenant's security guard also still there  break failed 25 April 2013 15537931.1 129

130. Rates on empty business premises  Non Domestic Rating (Unoccupied Property) (England) Regulations 2008  Regulation 5 – occupation for at least six weeks  Makro Properties –v- Nuneaton Council  warehouse – 13,000 sq. metres  pallets of paperwork – 0.2% of the space  Makro in occupation 25 April 2013 15537931.1 130

131. North West WIN Annual Update CORPORATE Nick Roome

132. Topics – recent developments 1.Audit Exemptions and Accounting Framework 2.Corporate Governance and Board Effectiveness 3.Entrepreneurs' Relief 4.Share Buybacks 25 April 2013 15537931.1 132

133. New regulations (1) The Companies and Limited Liability Partnerships (Accounts and Audit Exemptions and Change of Accounting Framework) Regulations 2012 – in force 1 October 2012 Provide audit exemption for qualifying subsidiaries Provide exemption from preparing and filing accounts for qualifying dormant subsidiaries 25 April 2013 15537931.1 133

134. Conditions for subsidiary audit exemption (1) Current position Members unanimous agreement (in respect of financial year) Parent provides statutory guarantee of all liabilities as at the end of that year Company is included in parent's consolidated accounts for that year Filing requirements met 25 April 2013 15537931.1 134

135. Statutory guarantee (1) All outstanding liabilities Wider than debts: extends to contingent liabilities and liabilities in tort 25 April 2013 15537931.1 135

136. A good idea? (1) Directors duties – guarantee cuts across concept of limited liability Does guarantee require a provision in parent accounts? Impact on parent solvency (S.123 Insolvency Act 1986 balance sheet solvency test) Guarantee is irrevocable: parent liable even if subsidiary sold 25 April 2013 15537931.1 136

137. Other points to consider (1) Contractual restrictions on parent guarantee What are anticipated costs savings? Is audit required for other reasons? Potentially class 1 transaction for listed parent 25 April 2013 15537931.1 137

138. Dormant subsidiary accounts exemption (1) Current position If company fulfils like conditions to those for audit exemption, it may be exempt from requirement to prepare and file accounts 25 April 2013 15537931.1 138

139. Corporate governance and board effectiveness: ABI report (2) ABI report published December 2012 Focuses on: board diversity succession planning board evaluation as fundamental to ensuring an effective board 25 April 2013 15537931.1 139

140. Board diversity (2) Report concludes that: more women are being appointed disclosure of gender diversity is improving BUT ABI: considers lack of female executives in boardrooms remains a concern (for shareholders) is not in favour of legislative approach 25 April 2013 15537931.1 140

141. Recommendations: board diversity (2) Report recommends: clear and specific disclosure greater disclosure of steps to achieve balance of skills and experience companies should disclose proportion of women in senior management and whole organisation development of initiatives to develop women in the organisation 25 April 2013 15537931.1 141

142. Recommendations: succession planning (2) Report recommends: meaningful (rather than "boilerplate") disclosure active engagement in succession planning (for board and senior management) companies should report on initiatives to develop next generation of senior management (however youthful current management are) 25 April 2013 15537931.1 142

143. Key role of chairman (2) Chairman's role: tailored to suit needs of each company create right board dynamic assist in setting agenda and ensuring (right) issues are debated manage board relations with executives to be an ambassador and fully engaged in company's business 25 April 2013 15537931.1 143

144. Entrepreneurs Relief (3) What is Entrepreneurs Relief? qualifying capital gains taxed at 10% (v.s. typically 28%) Criteria required to qualify for Entrepreneurs Relief: lifetime limit – first £10m of qualifying capital gains Shares trading company (or holding company of) officer/employee (company or group) 12 month period 5% votes, 5% ordinary capital 25 April 2013 15537931.1 144

145. Entrepreneurs Relief – structuring (3) 25 April 2013 15537931.1 145 Transaction structures and ER planning voting nominal values extended period if within 12 months management companies

146. Entrepreneurs Relief – EMI options (3) EMI options from 6 April 2013, qualify for ER no need to meet 5% test option period counts to 12 months applies to shares realised on exercise 25 April 2013 15537931.1 146

147. Share buybacks (4) Changes to share buyback provisions: 30 April 2013 Off-market buyback: ordinary resolution (not special) de minimis on reserves requirement - £15,000 or 5% share capital treasury shares – all companies 25 April 2013 15537931.1 147

148. Share buybacks (4) Buybacks for employee share schemes private company – approve multiple buybacks by ordinary resolution payment by instalments financed out of capital with solvency statement and special resolution 25 April 2013 15537931.1 148

149. North West WIN Annual Update Networking Lunch 25 April 2013