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Buying or Selling a Business in Ireland

This article provides a summary as to what to expect if you are considering buying or selling a business in Ireland. The primary focus will be on the purchase/disposal, of shares/assets and the different structures and procedures you will need to consider.

Of primary importance in the acquisition/disposal of a business, is to establish which of the two most common structures is the most suitable for the deal, an asset sale agreement or a share sale agreement. The tax implications will often dictate which route is taken.

An Asset Sale Agreement is appropriate when a buyer wishes to purchase assets from a company and leave liabilities both actual and contingent, behind. This may enable a buyer to cherry-pick certain assets which are particularly suitable to the buyer’s business. An asset sale agreement may also allow the buyer some flexibility in regard to the employees of the target company. However, careful legal advice should be obtained as the Protection of Employees on Transfer of Undertakings Regulations (SI 131/2003) (the “TUPE” regulations) may apply, resulting in the buyer inheriting some or possibly all employees of the target company with all their legal and contractual rights.

A Share Sale Agreement may be the appropriate structure where the buyer wishes to acquire shares in the target company. There are many reasons why this might be the case, most importantly however, you should remember that with this structure all assets and liabilities of the target company remain in place, so a comprehensive legal and financial due diligence is essential.

Heads of Terms (“HOT’s”)

The HOT’s is a document which sets out the agreement as between a buyer and seller. It will record the essential elements of the agreement as negotiated. The HOT’s do not compel the parties to conclude the deal and they are usually expressed to be “subject to contract” and not legally binding. HOT’s are used as a record of the main terms of the agreement.

Due Diligence

The due diligence exercise is hugely important in any corporate/commercial transaction. It is usually commenced by sending a detailed pre-contract questionnaire to the seller’s solicitor, and, from a timing point of view, this will very often take place at the same time the asset/share purchase agreement is being drafted. It will cover all aspects of the asset sale/ target business. It is a method of verifying that the buyer is being sold what was agreed in the HOT’s.  Generally, the maxim “Caveat Emptor” is applicable to a transaction, i.e. “Buyer Beware”. This will be diluted by the warranties (see below) however, in a share sale transaction a full investigation into the affairs of the target company is needed. To list but a few, the buyer will need to carry out the following:-

  • A full financial review of the target company’s financial affairs;
  • A review of the corporate structure of the company;
  • A review of the insurance cover and any current claims;
  • An investigation of title to any properties included in the transaction;
  • A review of all employee contracts including a review of the position of the employees under TUPE;
  • Enquiries into areas specific to the individual target company/assets;
  • A tax review will be required to ensure that no unanticipated tax liability issues will arise.

The due diligence process should highlight any issues in the target company/relating to the assets, allowing the buyer to either walk away or protect themselves through the imposition of warranties and indemnities in the contract.

Funding The Purchase

This can take many forms including venture capital funding, private equity funding and/or bank loan transactions. This aspect of the transaction will require additional investment documentation and/or providing security to a bank.

Warranties

A buyer will need to cover off certain risks by the insertion of warranties in the contract to ensure that they have a remedy if it later transpires that certain statements or representations were made which were not in fact true and which result in financial loss to the buyer.  A buyer will be entitled to compensation if the seller is in breach of a warranty.

 

The Disclosure Letter

The disclosure letter provides the seller with an opportunity to disclose against the warranties provided which reduces the seller’s exposure to post completion damages. The seller may qualify warranties by referring/disclosing specific problems the company may have in relation to insurance, litigation, employees, etc. If the seller does not adequately disclose, it may face an action for breach of warranty claim under the agreement. From the buyer’s perspective, issues disclosed through the disclosure process may result in the buyer seeking a reduction in the purchase price or walking away from the deal altogether.

Completion

On completion, the buyer’s solicitors will look for the following to be handed over:-

  • Executed Share Sale Agreement or Asset Sale Agreement;
  • Executed share transfer forms (where applicable);
  • Disclosure letter;
  • Resignation letters of the directors;
  • Statutory registers and company seal;
  • Release of any mandates;
  • Delivery of assets in an asset sale transaction;
  • Any other documentation that may be required dependant on the circumstances.

A board meeting will take place to allow for the approval of the foregoing and to approve any individual requirements as the transaction may dictate.

What to expect from your solicitor

A solicitor is usually instructed after heads of terms for the sale have been agreed and reduced to writing.  A good solicitor having relevant experience will identify potential areas of dispute between the buyer and seller at an early stage in the transaction so that they can either be legislated for in warranties or indemnities or taken into account in the deal by way of a reduction in purchase price, if necessary.  Prompt identification is key and will save you time and costs.

 

What Amorys Can Do?

At Amorys, we will carry out a detailed review of your requirements to ensure a suitable acquisition/disposal agreement is put in place. In collaboration with your accountants and tax advisors we aim to achieve a smooth transaction for you/your business. Our services extend to advising on merger and acquisition transactions for Small to Medium Enterprises (SME’s) including, management buy outs, carrying out due diligence and drafting the required legal documents.

If you would like further information in relation to any of the above please contact Brian Kirwan at brian@amoryssolicitors.com, or telephone: 01 213 59 40 or your usual contact at Amorys.

Please also see our article on the Tax Considerations When Buying a Business http://amoryssolicitors.com/2017/08/03/tax-considerations-for-a-buyer-when-buying-a-business/

The content of this article is for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18.

 

 

(c) 1st August 2017

Brian Kirwan Amorys Solicitors, suite 10, The Mall, Beacon Court, Sandyford, Dublin   18, Tel: 01 213 59 40, Email: brian@amoryssolicitors.com Website: www.amoryssolicitors.com

 

 

 

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Tax Considerations when Buying a Business

 

The tax structure of a business acquisition can be the deciding factor when assessing the merits of buying a business.

Broadly speaking business purchase transactions take the form of either a share or an asset purchase and both differ widely in terms of what tax considerations come in to play.

A Buyer could also buy shares from a ‘hived-down’ new company to which the Seller has transferred only the assets a Buyer would like to buy.  This structure is a combination of both a share sale and an asset sale but from the Buyer’s perspective it would be a share purchase.

Each buy-out structure has different tax implications for a Buyer and Seller.

A Seller may want a business sale to take place by way of a share sale so that he receives funds directly and is only chargeable to capital gains tax on the difference between the sales price of the shares and their base cost.  A Buyer may wish to purchase assets of a business only so that she does not inherit latent gains on assets (see below) or potential outstanding tax liabilities of a the target company.  Below is a ‘bird’s eye view’ of the tax considerations arising for a buyer in a share and separately, an asset, purchase transaction.  Our next article will deal with the tax aspects from the point of view of a seller.

What tax considerations do I need to be aware of if I am buying shares in a target company?

  1. Stamp duty: Stamp duty costs in such a transaction are generally lower as shares are subject to 1% stamp duty on their market value whilst assets are subject to a rate of up to 2% in some cases.  However, in cases of a share sale there is less flexibility to reduce the stamp duty, e.g. by arranging for certain assets to transfer by delivery.
  2. Exposure for hidden tax liabilities of a target company:
    This is generally a principal concern for a Buyer when buying a company.  Logically, a Buyer does not want to be liable for tax liabilities of a company that arose during a period for which s/he was not in control.   The longer the target company has been in existence, the greater the risk that there are hidden or undocumented tax liabilities for which the Company may be found liable at a later stage.
    The main objective for a Buyer is to ensure that a target company is ‘clear’ from any hidden taxation liabilities arising from for example, failure to file returns and pay penalties arising therefrom, failure to correctly account for value added tax (VAT), incorrectly claiming reliefs, etc.  Researching into these areas is called ‘due diligence’ and is a central component to any business acquisition.  Tax due diligence will help establish the purchase price and the type of tax warranties and indemnities to be included in the share sale agreement amongst other things.
    The advantage from a tax perspective of using the ‘hived down’ structure referred to above is that the new ‘hived down’ company would have a short tax history which would mean less risk for a Buyer for hidden tax liabilities.
  3. Exposure for Latent gains on the sale of company assets in the future: In a share purchase transaction, the assets of the target company retain their original cost price.  This means that if/when the Buyer (through the target company) sells its assets it will have to pay corporation or capital gains tax on the difference between the sale price of that asset and the original cost of purchase (if any).  If the original cost of purchase of that asset is less than its market value on the date of acquisition of the target company, the Buyer will be liable to pay tax on that ‘latent’ gain if it subsequently sells those assets for greater than or equal to the market value on the date it acquired the company.  Latent gains could therefore reduce the value of a Buyer’s interest in the target company if they are not considered at the outset of a transaction.

 

What tax considerations do I need to be aware of if I am buying assets from a target company?

  1. No exposure for latent gains on the sale of target company assets  : In an asset purchase transaction, a Buyer acquires the assets at their market value at the date of sale and avoids potential exposure to latent gains referred to above.  A Seller would more than likely prefer a share sale to avoid having to pay capital gains tax, having regard to the fact that its members would be subject to further tax (income or dividend withholding tax) when extracting the sale proceeds from the selling company.
  2. No exposure for hidden tax liabilities : In an asset buyout, hidden tax liabilities can be left behind in the target company without requiring the Buyer to rely on detailed warranties which may prove unrecoverable from the Seller at a later time (because of its liquidation or exit from Ireland).
  3. Value Added Tax liability on assets purchased:  A Buyer may need to pay value added tax at 13.5% on the value of the assets – for example commercial property which has been developed in the past two years or remains in the ‘VAT Net’.  If the Buyer is not registered for VAT or cannot reclaim VAT paid, it remains an additional cost of the transaction.  In many situations it is possible for a Buyer to pay VAT on the purchase of an asset and reclaim it on the same day resulting in a cash neutral position but each Buyer every situation is unique and detailed advices are required in this regard.
  4. Tax advantages of purchasing premises directly in the name of the Buyer: There may be tax advantages to a Buyer purchasing real property of a business directly and for him/her/them to grant a commercial lease to the target company. A buyer should enquire with their advisers as to the tax benefits of doing so before executing any Share Sale and Purchase Agreement.

As you will see from our next article there are many competing objectives from a tax perspective for both a buyer and a seller in a business acquisition.

There are many ways in which Amorys Solicitors can be of assistance to a prospective Buyer in a business purchase transaction.  We advise on all aspects of merger and acquisition transactions for Small to Medium Enterprises (SMEs) including advice in relation to the form and structure of an acquisition or buy-out, carrying out due diligence and drafting corporate contracts including Share Sale and Purchase, and separately, Asset Sale and Purchase Agreements. If you would like further information in relation to any of the above please contact Deirdre Farrell by email on deirdre@amoyssolicitors.com, or telephone:  01 213 59 40 or your usual contact at Amorys.

The content of this article is for information purposes only and is not intended to be legal advice.  Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18.

© August 2017, Amorys Solicitors

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Corporate Manslaughter Bill 2016

The Corporate Manslaughter Bill 2016 which is making its way through the Oireachtas at the moment creates 2 new criminal offences which will have significant impact on healthcare service providers. Firstly, an offence of “Corporate Manslaughter” is created when a person’s death is caused by gross negligence by an organisation. Corporate manslaughter can be committed by an “undertaking” which is a company, or corporate body, charity, government department or statutory body and can result in a large fine for the organisation. Secondly, management employees may be in addition charged with a criminal offence of “grossly negligent management causing death” in an organisation which has been convicted of Corporate Manslaughter. This occurs when a member of staff (“high managerial agent”) knew or ought to have known of risk of death or serious personal harm, and failed to take reasonable efforts to eliminate the risk which contributed to a death. This means a Director, Manager or Senior Official in a company or state body could also be charged and given a jail sentence in the event of a death.

 

Corporate Manslaughter occurs when an organisation which has a duty of care to an individual fails to meet the standard of care required to prevent substantial risk of death or serious personal harm, and to take all reasonable measures to anticipate and prevent risks. The size and circumstances of the organisation will be taken into account. The duty of care applies to all employers, subcontractors, owners/occupiers of property, producers of goods and service-providers. A Court will take a number of factors into account in assessing whether there is a breach of the standard of care required and specifically the management, rules, policies, allocation of responsibilities, training and supervision of staff, previous response of the organisation to other incidents involving death or serious personal harm, the organisation’s goals, communications, regulation, assurance systems and whether it is a licensee or contractor.

 

All management and officeholders should be aware that they might come within the definition of a “high managerial agent”. A “high managerial agent” is a Director, manager or officer of an organisation or someone acting in that capacity. A Court will consider the actual and stated responsibilities of the employee to establish if the employee should have known of the risk, and whether it is in the power of the employee to eliminate the risk. If it is not in the power of the employee to eliminate the risk, whether the employee passed information on the risk to others who can eliminate the risk in considering a charge of “grossly negligent management causing death”. Prosecutions for the 2 offences are on indictment in the Circuit Court. An organisation which is convicted of Corporate Manslaughter will be liable for a substantial fine. A “high managerial agent” convicted of “grossly negligent management causing death” will be liable for a fine and or term of imprisonment of up to 12 years.

 

In addition to other sanctions, a Court may make a Remedial Order to address the problems identified to prevent any recurrence and can consult with relevant trade unions and regulatory and enforcement authorities in considering the conditions. The organisation may be subject to a Community Service Order or Adverse Publicity Order where it is required to publicise its conviction for Corporate Manslaughter, the fine and any Remedial Order online or by other means. A “high managerial agent” who is convicted of “grossly negligent management causing death” can also be disqualified from acting in a management capacity for up to 15 years on indictment or subject to a fine of a maximum of 5 million euro and or up to 2 years in prison. The Court is entitled to enquire into the financial circumstances of an individual in setting the fine. If an organisation has been dissolved and reformed and the Court is satisfied the purpose of this is to avoid criminal liability, the Court can disregard the fact that an organisation has changed name.

 

This is a summary of the bill which has been published and specific legal advice should be obtained in any situation. If you have any comment on this article or would like any further information, please contact Davnet O’ Driscoll at Davnet@amoryssolicitors.com

 

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Changes to the Employment and Investment Incentive Scheme in Budget 2016

Changes have been introduced to the Employment and Investment Incentive Scheme (“EIIS”) in section 16 of the Finance Bill 2015 which will no doubt be welcomed by investors and businesses alike.  The relevant changes apply to shares issued in an EIIS qualifying company to an investor on or after 13th October 2015.

The EIIS provides for income tax relief for investors of up to 41% of their investment to a limit of €150,000 each year up to 2020 in qualifying companies once certain conditions are met by both parties.

The relief is given by way of a deduction from the total income of the investor.  This means that the qualifying amount of the investment is taken out of the tax computation entirely (save for the universal social charge computation).  The qualifying amount of investment will either be 30/41 or 11/41 of the investment (see below) or an amount of unused relief carried forward from previous years.  Most investors are taxed at the higher rate of tax, currently being 41%. Accordingly the tax or monetary saving to an investor purchasing shares from an EIIS qualifying company rather than a non-EIIS qualifying company can be as much as 41% of the amount invested.

There is no tax advantage to qualifying companies but securing EIIS status may enhance their ability to attract external funding.

The relief is granted to investors in two tranches: the first tranche is a guaranteed relief of 30/41 of the amount invested and may be claimed by the investor in the first two years after investment is made however the second tranche being 11/41 of the amount invested is conditional and may be only claimed once certain targets have been achieved by the qualifying company. For instance prior to the Finance Bill 2015 the targets were the following:-

  1. That the number of employees had increased and the average wage of employees had not been reduced; or
  2. The qualifying company had increased its expenditure on research and development.

Target no.1. above has been tweaked by the Finance Bill 2015 to be an increase in staff numbers, by a minimum of one member of staff, and an increase in total wages by a minimum of the wages of one member of staff.

The EIIS has now been extended to include companies engaged in nursing home and international financial services trades.  In addition medium sized[i] enterprises already engaged in a trade and having a registered office in “non-assisted areas” will be eligible for the relief.

In brief, the following amendments were introduced to the EIIS by Finance Bill 2015:-

  1. Micro[ii], Small[iii] and Medium Enterprises at any stage of development in any part of the State may now qualify for EIIS.
  2. The limits on the amounts that can be raised by companies have increased from.
    • €2,500,000 to €5,000,000 in any 12 month period and
    • €10,000,000 to €15,000,000 in the lifetime of the company.
  3. The minimum period for the holding of shares in an EIIS company, and for the company to remain a qualifying company for EIIS, has been increased from 3 to 4 years
  4. A qualifying company must qualify for a Tax Clearance Certificate at the time of applying to Revenue for EIIS status.
  5. Internationally traded financial services are now considered to be a qualifying trade under EIIS subject to certification by Enterprise Ireland.
  6. Nursing homes and nursing homes which incorporate residential care units are now considered to be a qualifying trade under EIIS. Furthermore monies raised under EIIS can be used to expand the capacity of the Nursing Homes or Residential Care Units.
  7. Qualification criteria for the second tranche of relief (i.e. the further 11/41 of the investment) has been changed from an increase in staff numbers and average wages, to an increase in staff numbers, by a minimum of one member of staff, and an increase in total wages by a minimum of the wages of one member of staff.
  8. The EIIS now operates under the conditions set out in the EU Commission’s General Block Exemption Regulations on State Aid (2014).  This is a set of 43 exemptions from the requirement of prior notification and commission approval for State Aid purposes.

Further details of these changes can been viewed in section 16 of the Finance Bill 2015 (http://www.finance.gov.ie/sites/default/files/Finance%20Bill%202015%20As%20Initiated.pdf)

 

(c) October 2015, Deirdre Farrell, solicitor and AITI Chartered Tax Adviser, Amorys Solicitors, Suite 10, The Mall, Sandyford, Dublin 18



[i] A medium sized company is defined in the relevant legislation as a company with less than 250 employees and annual turnover not exceeding €50m or an annual balance sheet not exceeding €43 million

[ii] A Micro sized company is a company with less than 10 employees and an annual turnover not exceeding €2 million

[iii] A small sized company is defined in the relevant legislation as having less than 10 employees and a turnover not exceeding €10 million.

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The Companies Act 2014 Enacted

he Companies Bill 2012 was signed by the President on 23rd December 2014.  It has been enacted as the companies Act 2014 (Act No. 38 of 2014) and is expected to be commenced by Statutory Instrument with effect from 1st June 2015.

Amorys’s last news update in relation to the Companies Bill is being reviewed with references to the Act.
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Who owns the copyright in your computer software programs?

Many businesses outsource the development of their software to independent specialists. Whilst very often great care and attention is given to preparing and agreeing a software specification and the price or cost of the works to be undertaken. It frequently transpires that there are no other written terms of the agreement in existence.

This can lead to many legal problems but one of which the non-lawyer may not be aware is that, in the absence of a formal assignment in writing, ownership of the copyright in the resulting program will automatically be vested in the “author” of the program. The “author” is the person who “creates” or writes the software and that person’s copyright will not expire until 70 years after his/her death! The Copyright and Related Rights Act 2000 (“CRRA 2000”) incorporates the foregoing principles and also contains a definition of what are described as “acts restricted by copyright”. These acts include a restriction by anyone other than the copyright owner, who has the exclusive right, from :

  • coping the program and/or;
  • adapting the program.

Such restrictions could have very serious fiscal consequences for the user or “would be” owner of the software. The CRRA 2000 specifically provides that to be effective, a transfer or assignment of copyright must be in writing and signed by or on behalf of the owner. A properly drafted Software Development Contract should therefore contain a form of assignment of copyright consistent with the requirements of the legislation. Failure to address this issue at the very outset can give rise to very expensive and time consuming disputes and may lead to litigation.

Readers should also be aware that the CRRA 2000 provides not only that infringement of copyright is actionable by the owner for damages and for appropriate injunctive relief where necessary but that such an infringement may also constitute a criminal offence punishable on summary conviction by a fine of up to €1,905.00 and or 12 months imprisonment or, on conviction on indictment, to a fine of up to €127,000 and or 5 years imprisonment. Not to be taken lightly! Companies, partnership and individuals can all be the subject of a wide range of legal proceedings all of which could be avoided by taking timely legal advice in advance of concluding a contract.

An important point to note is that the CRRA 2000 clearly distinguishes the position of an employee who writes software in the course of “employment” from that and an independent contractor. In the former case the employer is the first owner of the copyright. In such circumstances however it would be prudent for the contract of employment to contain an appropriately worded clause to cover this point for the avoidance of any doubt.