Mergers of Non-Profits as Survival Strategy | Legalwise Seminars

Mills Oakley Partner Vera Visevic discusses the rise of mergers as an avenue for longevity in the not-for-profit sector. There is no doubt that mergers are happening and are being seriously considered by many Australian not-for-profits, she writes. 

In response to changes over recent years, mergers have become a trending concept in the not-for-profit (NFP) sector and are often considered as an option for survival in challenging economic climates.

Australia does not have a register of merged charities to record how prevalent mergers are, but there is no doubt that mergers are happening and are being seriously considered by many Australian NFPs. The results of the 2016 NFP Governance and Performance Study revealed that:

• • over a third of directors reported that their board had discussed a merger in the last twelve months;
  • 6% reported that they have completed a merger in the last year; and
  • 8% reported that they are currently undertaking a merger.[i]

What is a merger?

A merger is when two or more entities come together to form one entity (or one group of entities) to better meet the needs of the beneficiaries or users of the organisations, and make the best use of their assets. A merger can assume a number of different legal forms. In practice, mergers of NFPs involve one of the following:

• • one organisation assuming control of another;
  • two organisations merging into a new organisation; or
  • organisations being grouped together in a parent/subsidiary structure.

Why merge?

Whilst there are a number of reasons and incentives which might drive a charity or NFP to consider a merger, there are also significant risks that a NFP should be aware of which may hinder the ultimate success of a merger. Organisations should conduct thorough investigations and undertake extensive planning and discussions before commencing the merger process. The risks and benefits should be carefully weighed up to determine whether the proposed merger would achieve positive long-term results for each entity.

In basic terms, a merger should only proceed if the two organisations are confident that they will be better and more successful working together.[ii] One of the most common reasons to consider a merger is as a mechanism to reduce the implications of financial uncertainty or challenging economic conditions.[iii]Organisations experiencing financial difficulty may approach a more financially robust partner in an effort to preserve their business efficacy and success. Mergers also become prevalent in times of crisis, for instance where there is a major shift in the regulatory framework of the sector, or when an organisation undergoes a change in leadership.[iv]

Possible benefits of a merger

The predominant purpose of pursuing a merger is that it would allow two or more organisations to pursue their objects both more effectively and more efficiently, by pooling their resources and avoiding duplication of administrative tasks. Other benefits may include the following:

• • allowing the organisations to provide the best possible service to members or beneficiaries through combining resources, which in turn results in greater satisfaction for all stakeholders involved;
  • enabling organisations to achieve advantages of scale and subsequently increased reach and impact;
  • increased funding from both the government and private sector as mergers provide the opportunity for charitable organisations to increase their impact;
  • enhancing the potential to win public service contract tenders as governments tend to favour larger charities when allocating the main public service contracts; and
  • allowing organisations to exploit synergies by sharing knowledge and skills and establishing additional means for pursuing their missions and objectives.

Possible disadvantages of a merger

Despite these prospective benefits, there are some potential drawbacks to NFP mergers. Some potential drawbacks include the following:

• • achieving advantages of scale and costs savings can take significant time to achieve;
  • losing out on new initiatives, opportunities or income sources because of time spent on the merger;
  • possible disruptions (e.g. through office relocation or through redundancy processes);
  • a lack of unique identity;
  • loss of existing funding (e.g. where a funder is currently donating to both organisations but their policy states that they can only give to one organisation);
  • significant fees including accounting fees, due diligence fees and legal fees for reviewing contracts and agreements;
  • potential difficulties transferring important contracts such as funding contracts, subcontracting arrangements or lease arrangements; and
  • cultural incompatibility.

Due Diligence

Due diligence is a key component of the merger process and allows an organisation to consider the efficacy of a merger prior to entering into a binding contract with the other party. The goal is for each party to discover, assess and analyse important components of the other organisation in order to make an informed decision about whether to proceed with the merger or not.[v] The cost of due diligence is a proper use of NFP funds, but should be forecast and reviewed to ensure it remains proportionate to the risks involved in the potential merger. Further, the nature of due diligence checks should be proportionate to:

• • the amount of income and expenditure of the NFP;
  • the size and nature of the proposal; and
  • the nature of existing and planned activities.

Documents that will ordinarily be exchanged during due diligence may include the following:

• • corporate documents;
  • financial;
  • fundraising documents;
  • personnel documents;
  • contracts; and
  • statements regarding pending, anticipated or threatened litigation.

Merger Agreements

Once all necessary preliminary research, investigations and internal discussions have been completed, the next step is to draft the deed of merger. This may involve negotiating the terms of the deed, addressing any areas of concern, establishing an integration committee and deciding on their objectives, and finally signing the deed.

Mission Preservation

Typically, an organisation will approach another organisation which has a similar mission, to merge. This can be a mechanism to help NFPs combine resources and better serve the community.[vi] However, it is best that both organisations discuss in the concept phase a new mission which incorporates what services both organisations provide, as well as what they would like to achieve in the future together.[vii] This exercise will ensure that the organisations are working together towards a positive and focussed future. It is important that both organisations explain the new mission to key stakeholders i.e. members, employees, and customers.

Disclaimer

This paper is intended to provide only a limited analysis of the subject matter covered. It does not purport to be comprehensive, or to provide legal advice. Any views or opinions expressed are the views or opinions of the author, and not those of Mills Oakley as a Firm. Readers should satisfy themselves as to the correctness, relevance and applicability of any of its content, and should not act on any of it in respect of any specific problem or generally without first obtaining their own independent professional legal advice.

 

Partner Vera Visevic leads the Charity and Not-For-Profit team at Mills Oakley, with over 20 years’ experience in acting for numerous charities, religious and not-for-profit organisations. Vera sits on numerous boards and committees. She assists clients on governance and fundraising issues, and also regularly advises organisations on ATO and ACNC endorsements, constitutions, mergers, structural issues and social enterprises. Vera has written several academic works, including a chapter within ‘Charity Law’ (2012, 2016 and 2018), published by Thompson Reuters, and often presents seminars to executives of not-for-profits and charities. In addition to her not-for profit expertise, Vera has extensive experience in property law. Her Publications include: A practical guide published in Company Director February 2017 edition , which clearly sets out the priorities of what a diligent would-be director would look for when joining a Not-For-Profit board; Vera has been published in the 2018 Practical Law Global Guide Charity Law; Vera has also been published in the Better Boards Australia Newsletter. Contact Vera at vvisevic@millsoakley.com.au

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