Introduction to Mergers and Acquisitions

Despite a business environment held hostage to the Brexit threat for the last three years, J.W. O’Donovan has seen continued growth and activity in the sale and purchase of Irish private companies. There has been particular activity around inward investment by foreign-based multinational companies either looking for an established business in Ireland or looking to further build on existing footholds they might have in the State.

We are often approached by clients and potential clients looking for guidance and advices on a potential sale or purchase of a company. For many, it is their first time involved in such a process. It can be a very daunting and, for some, overwhelming introduction to what has become a relatively forensic legal and financial process.

With that in mind, the Corporate team at J.W. O’Donovan will, through a series of upcoming dedicated articles, share some of the ins and outs of a typical share sale and purchase in relation to an Irish private company. In the first of the series, we look at the basic components of transactions of this type.

What is involved in a a private company sale or purchase? 

In terms of setting out what is involved in a private company sale or purchase in Ireland, a transaction can generally be broken down into its essential elements as follows:

  1. The Target company(s)

This is the company or indeed group of companies that are referenced generally as the “Target” entity, although it is actually the shares in the company that are being acquired.

2. The parties involved comprising the Seller(s) being the shareholder(s) in the Target company and the Buyer

The Seller can be an individual or holding company of the Target. Quite often, it will be a holding company for tax planning purposes, which enables an ultimate beneficiary to maximise reliefs available between grouped companies. We will touch on this again in later articles.

3. Pre-Heads of Terms discussions and negotiations

This stage includes a high level business review to evaluate price offering for the shares.

4. The Heads of Terms

The Heads of Terms is a document setting out the commercial terms reached between the parties.

5. Financial Due Diligence

At this stage, the buyer’s financial advisors will do a thorough analysis of the financial wellbeing of the Target company.

6. Legal Due Diligence

The buyer’s legal team will also do a complete review of key areas of the Target company including corporate structures, commercial agreements and HR records and policies.

7. Negotiation and transactional documentation

The primary documents including Share Purchase Agreement, Deed of Tax Covenant and Disclosure Letter are drawn up.

8. Approvals of Regulatory Authorities

Approval is sought from Regulatory Authorities such as the Competition and Consumer Protection Commission, where required.

9. Completion and transfer of funds

Once the transaction documentation is signed and funds are transferred to the sellers, the transaction is complete.

10. Post-completion integration

After the transaction completes, the two companies are then integrated on an operational level.

These are the components in their basic form but a transaction may have a number of ancillary or additional components. These may include pre-transaction corporate restructures such as the establishment of special purpose vehicles or the transfer of assets out of Target company to a special purpose vehicle or existing connected company.

No two transactions are the same. There are too many variables involved that dictate the manner in which a transaction proceeds. One fundamental difference between transactions and the parties involved is the contrast between the buyer’s objective and the seller’s objective.

A buyer is likely to be motivated by expansion plans with the target company being seen as a good bolt-on to an already established business in the same sector. A seller’s objective can sometimes be broader. For example, it may be the realisation of an investment, or a decision to move out of a particular market. Whatever the reason, from the outset of the process, both parties need to be clear on their objectives – what do they want to achieve, for how much and by when?

In our next article, we will go into more detail on the Pre-Transaction steps to be considered before engaging in the Sale/Purchase process.

If you would like more information on this topic, contact John Sheehan, Partner at jsheehan@jwod.ie or 021 7300200.

JWOD Managing Partner to sleep out in aid of Focus Ireland

JWOD Managing Partner,  Jerome O’Sullivan, is to take part in Focus Ireland’s Shine a Light Night, sleeping out for one night on Spike Island. The annual event, which takes place on Friday October 18th,  sees business leaders raise much-needed funds to combat the homelessness crisis in Ireland. The Sleep-out, which raised €1 million last year, will also take place in the Law Society of Ireland, Blackhall Place.

Focus Ireland is a national charity working with families, children and young people who are homeless, or at risk of homelessness, providing access to information, housing, childcare and a range of education services. In 2018, Focus Ireland provided support to over 15,500 people.

If you would like to sponsor Jerome’s participation in the Sleep-out, you can contribute here.

JWOD appoints Ciara Lehane as newest solicitor on litigation team

We are delighted to announce that we have appointed Ciara Lehane as solicitor on the litigation team at JW O’Donovan. This new appointment comes as the firm experiences increased activity in defence litigation among our corporate clients.

Ciara joins our Litigation department, after spending three years practicing in the area of defence litigation at a leading Dublin firm. Ciara specialises in civil litigation and has significant experience dealing with the conduct of defence litigation on behalf of insurance companies in the areas of motor liability, employers’ liability, public liability and defamation actions. She is a fluent Irish speaker and is enrolled on Clár na Gaeilge (a register of fluent Irish speaking solicitors maintained by the Law Society of Ireland).

Speaking about her new role, Ciara said: “I’m delighted to join JWOD, at a time when business in Cork city and the surrounding region is thriving. The area of defence litigation is fast-moving, and I look forward to the opportunity of working with the experienced team at JWOD and with their valued clients.”

Welcoming Ciara to the team, Jerome O’Sullivan, Managing Partner of JWOD said: “As we continue to see growth in our litigation practice, it is a pleasure to welcome Ciara to the JWOD team. Ciara brings with her specialist knowledge in the area of defence litigation, which will be of considerable benefit to both our team and clients”.

JWOD advises on strategic acquisition of Irish food testing company

J.W. O’Donovan Partners John Sheehan, John Fuller, David Pearson and Ciara McDonnell recently advised on sale of a majority holding in Advanced Laboratory Testing to Mérieux NutriSciences, as Mérieux seeks to expand its footprint further in Europe.

Mérieux NutriSciences is a world leader in the field of Food Safety and Quality, while Advanced Laboratory Testing is a leading player in the food testing market, and was first established in Kildare, in 2013.

Mérieux’s acquisition of Advanced Laboratory Testing marks the company’s entry into the Irish food safety market. The announcement is a continuation of a trend seen in the last two years of companies based on mainland Europe purchasing entities in Ireland for the purpose of expansion.

For more information on this acquisition, please click here.

To find out more about our expertise in the area of Corporate and Commercial Law, please click here.

Planning and Development Act 2000 (Exempted Development) (No.2) Regulations 2019

On 1 July 2019 new planning regulations came into effect governing the use of short-term tourist related lettings such as Airbnb in areas where rent pressure zones apply.

The Regulations were introduced in an effort to ease the housing crisis by freeing up properties which are currently used for Short Term Lettings or Airbnb and introducing them back into the traditional long-term rental sector.

Short-Term Letting is defined in the Regulations as ‘the letting of a house or apartment or part of a house or apartment, for a period not exceeding 14 days’.

The Regulations introduced the requirement for planning permission in respect of short-term lettings as this is now considered a material change of use for properties which are located in high demand areas. However, where property owners do apply for planning permission it is likely that this will be refused by the Local Authority in rent pressure zones, which will effectively ban short-term lettings in these areas.

Exemptions:

The Regulations provide exemptions to the requirement for planning permission in respect of short-term lettings where the property is the owner’s principal private residence (‘PPR’).

In particular where the property owner rents part of their PPR as a short-term let while they are still resident there, this is exempt under the Regulations and no planning permission is required.

However, where the property owner is temporarily absent from the house and they let the entire premises for short-term letting, this is considered to be an exemption only where the letting is capped at 90 days per year, with a limit of 14 days per letting. Anything in excess of this will require planning permission for change of material use of the property.

Second property:

Where a person owns a second property located in a rent pressure zone and intends to let it on a short-term basis, they must retain planning permission for this property to be used for tourism or short-term letting purposes. No exemption applies in respect of the second-property and all short-term lettings require planning permission.

Registration:

Property owners who are availing of short-term lettings but fall under the exemptions in the Regulations must notify their local authority using the prescribed forms. In particular where a property owner is letting part of their PPR on a short term basis or is letting their entire property for less than 90 days per year, they must indicate this to their local authority at the beginning and end of each year and provide supporting evidence as to why they are exempt from requiring planning permission under the Regulations in respect of their short-term letting arrangements.

 Enforcement:

The Planning Authorities in each functional area are now responsible for monitoring and enforcing compliance with the new requirements. Planning Authorities can take extensive actions where there has been a material change of use of a property and where planning permission has not been retained or complied with. Non-compliance with the Regulations carries a maximum penalty of a €5,000 fine and/or 6 months imprisonment.

If you would like more information on this topic, please contact:

Ciara McDonnell, Partner

Recent landmark case gives further clarity around ‘reasonable accommodations’ for employees with a disability

There has been much debate surrounding what constitutes ‘reasonable accommodation’ for employees with a disability. A recent landmark Supreme Court decision, Nano Nagle School v Marie Daly, addressed three of the main issues in its decision, as follows;

Section 16 – Tasks v Duties:

Section 16(1) of the Act provides that an employer is not required to retain an individual in employment if that person is no longer fully competent to undertake their duties.

The Court emphasised that this provision cannot be read in isolation and that section 16 of the Act must be read in its entirety. In particular it noted that s.16(1) must be read in harmony with s.16(3) which provides a duty on an employer to make ‘reasonable accommodation’ and to take ‘appropriate measures’ to facilitate an employee maintaining their position with a disability.

What constituted an ‘appropriate measure’ was always a matter for the courts to decide and up until now the courts had taken the view that a delegation of ‘tasks’ was considered an ‘appropriate measure’ but that delegation of ‘duties’ went beyond this. The Supreme Court emphasised that there is no real distinction between tasks and duties. Accordingly, there is no reason why certain duties cannot be removed or ‘stripped out’ once it doesn’t place a disproportionate burden on an employer. The test must be one of fact, reasonableness and proportionality and the duty of determining what is reasonable accommodation is one for the deciding tribunal.

Free-standing Obligation:

The Court was critical of the Labour Court’s finding that there existed a ‘free-standing’ obligation on an employer to carry out an evaluation of all the available options, irrespective of whether the employee is capable of doing the job. The Supreme Court held that an obligation is not free-standing, and failure of compliance will not, in itself, give rise to compensation. The Court emphasised there is no mandatory duty of consultation with an employee in each and every case and the Act does not provide for compensation simply by the absence of consultation as this could not in itself constitute discrimination under s.8 of the Act. The Court observed however that a wise employer will provide meaningful participation in vindication of his duty under the Act.

United Nations Convention on the Rights of Persons with Disabilities:

The Court addressed the applicability of EU law to the case and noted that the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) was approved by the EU Community and ratified by Ireland in 2018. It stated that in accordance with Article 261(2) TFEU, international agreements such at the CRPD were binding on its institutions and therefore prevailed over Acts of the European Union. Accordingly, any EU Directives which relate to disability one to be interpreted in harmony with the U.N Convention and more specifically that the EU concept of disability was explicitly aligned with the CRPD.

Conclusion:

The decision offers some clarity and guidance for both employers and employees and highlights the importance of the following key points:-

  1. There is no free-standing obligation on employers to consider the viability of re-organisation of work and redistribution of tasks among other employees;
  2. There is no duty to create a different position to accommodate an employee with a disability;
  3. There is no distinction to be made between ‘tasks’ and ‘duties’;
  4. An employer can delegate duties to another employee;
  5. The UNCRPD is applicable and prevails over Acts of the European Union.

If you would like more information on this topic, contact David Pearson, Partner at dpearson@jwod.ie or 021 7300200.

 

Recent High Court case highlights importance of independent legal advice for business tenants

A recent High Court battle between Dublin Port Company and Automation Transport Limited raised some interesting issues concerning the execution by a business tenant of a renunciation of its legal rights to a new tenancy on expiry of an existing tenancy.  Under Landlord and Tenant law, subject to certain exceptions, business tenants who have been in occupation of a property for at least five years are not obliged to vacate the property when their existing lease expires and can claim a new tenancy for a further period of between five and twenty years at market rent.

One of the situations where a landlord can refuse a new tenancy is where the tenant has executed a renunciation of its statutory right. However, for the landlord to be able to rely on the renunciation, the legislation provides that the tenant must have received independent legal advice prior to signing the renunciation.

This case centred mainly around the fact that there were a number of errors in the Deed of Renunciation executed by the tenant and doubt was cast on whether in fact it referred to the premises which was the subject of the case. Ultimately, based on the evidence, the judge was satisfied that the errors were not sufficient to invalidate the renunciation.

The tenant also challenged the Deed of Renunciation on the issue of independent legal advice. Initially, it was claimed by the tenant that no such advice had been received, but it seems it was later conceded that this advice may have been given. Significantly, the judge found that where a tenant signs a document which states that he received independent legal advice, he is bound by the statement even if it is factually untrue. He based this finding on the legal principal known as “estoppel by misrepresentation”. This essentially means that a party to a contract can’t evade his obligations on grounds which arise from a misrepresentation he made to the other party, i.e. he can’t benefit from his own misrepresentation.

This is a significant finding as sometimes tenants sign renunciations containing a statement that they have received independent legal advice even where no such advice was given (perhaps in an effort to save on legal costs). Tenants should be aware that if they sign such a document, they will not be able to claim at a later date that they are not bound by it on the grounds that no such advice was actually received.

For landlords, the case merely reinforces the importance of:-

(a)        ensuring that a renunciation is signed by a tenant if the landlord wants to avoid statutory renewal rights accruing;

(b)       insisting that the tenant obtain independent legal advice (even where the tenant does not wish to seek such advice);

(c)        insisting that the tenant provide written confirmation of having received independent legal advice; and

(d)       where possible, getting confirmation from an identified legal adviser that such advice has been given.

If you would like more information on this topic, contact JWOD Managing Partner, Jerome O’Sullivan on josullivan@jwod.ie or 021 7300200.

Changes to Requirements in Civil Claims

There have been a number of recent changes relating to claims made under the Civil Liability and Courts Act 2004 (the Act).

  1. Written Notice of Claim – Time Limit Reduced to One Month

Section 13 of the Central Bank (National Claims Information Database) Act 2018 brought in important changes in respect of the obligation to serve notice in writing on a wrongdoer or alleged wrongdoer before issuing proceedings under the Act. These changes may have a significant impact on the level of costs that a court may ultimately allow for the legal fees of a successful Plaintiff.  The change will apply to all accidents that occurred on or after the 28 January 2019.

A plaintiff in such an accident is now required to serve a notice in writing within one month (rather than two months) on the alleged wrongdoer.  The Plaintiff will also now need to show ‘reasonable cause’ for why they did not send such notice within one month, failing which the court shall draw inferences from this failure, and may subsequently award a lower amount of legal costs or no legal costs at all to the successful Plaintiff:

Section 8 (1) of the of the Civil Liability and Courts Act 2004: now states as follows:-

“Where a Plaintiff in a personal injuries action, fails, without reasonable cause, to serve a notice in writing, before the expiration of one month from the date of the cause of action, on the wrongdoer or alleged wrongdoer, stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action, shall:-

  • Draw such inferences from the failure as appear proper

and

  • Where the interests of justice so require:

(i) Make no order as to the payment of costs to the Plaintiff or

(ii) Deduct such amount from the costs that would, but for this section, be payable to the Plaintiff as it considers appropriate.”

It is uncertain at this point what might suffice to show reasonable cause, but it might be expected that situations involving urgent or protracted medical treatment to the Plaintiff subsequent to the accident (whether or not these relate to the accident) or involving difficulties relating to identification of the alleged wrongdoer, or cases involving a minor or other disadvantaged Plaintiff might bring them beyond the threshold and therefore not be penalised. In any event, practitioners will note that the need to send a written notice as soon as possible following the cause of action has attained an increased importance.

  1. Affidavits of Verification – changes to the penalty provisions

Another change came into effect on 28 January 2019 and applies to all pleadings and information provided in proceedings brought under the Act on or after that date.  This change is contained in the new Section 14(4) to the Act which now contains the same penalties as Section 8 above for failure to, inter alia, lodge Affidavits of Verification to relevant pleadings within 21 days of delivery of such pleading.

Conclusion

Despite the fact that potential claimants will usually have a period of two years to initiate court proceedings, the changes above place an even greater onus on them to serve written notice of the claim within a very short period of time or face potentially adverse consequences. It is clear from a combination of these changes and the further changes to Personal Injury cases that have come into force on the 3rd April by way of the PIAB (Amendment Act) 2019 (which will be dealt with in another post) it is clear this is an area of law that is experiencing significant reform.

For more information please contact Neal Horgan, Associate Solicitor, on:

Tel: 021-7300200 or

Email: nhorgan@jwod.ie

 

Registry of Beneficial Ownership

Statutory Instrument No. 110 of 2019 entitled European Union (Anti Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (“Regulations”) was signed into law by the Minister of Finance on the 22nd of March 2019.

The purpose of the Regulations is to establish a Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies and the appointment of a Registrar of Beneficial Ownership.

The Register of Beneficial Ownership (“RBO”) is a register of information held by companies and industrial and provident societies in their own internal registries in respect of the natural persons who are their beneficial owners/controllers.  The information that is required to be filed with the RBO in respect of each beneficial owner (who must be a natural person) is as follows:

  • Forename & Surname.
  • Date of birth.
  • Personal Public Service Number (PPSN).
  • Nationality.
  • County of Residence.
  • A statement of the nature of the interest held by each beneficial owner (e.g. controlling shareholder).
  • A statement of the extent of the interest held by each beneficial owner (e.g. controller of 26% of shares in company).
  • The date on which each natural person was entered in the company’s own register as a beneficial owner.
  • The date of cessation as beneficial owner.
  • If, having exhausted all possible means, no natural persons are identified as beneficial owners, there shall be entered in the register the names and details of the natural person(s) who hold the position(s) of senior managing official(s) of the company/I&P. Relevant entities shall keep records of the actions taken to identify their beneficial owners.
  • Details of the presenter making the entry in the RBO on behalf of the company, i.e. name, contact details and capacity in which they are filing.

Part 3 of the Regulations, which relates to the establishment of the central register, will come into operation on 22 June 2019.  In accordance with the Regulations, the Registrar of Beneficial Ownership will begin to accept on-line filings from 22 June 2019, after which there will be five months for companies and Industrial and Provident Societies to file their Register of Beneficial Ownership data without being in breach of their statutory duty to file.

For further information on the Regulations and your filing obligations contact our Corporate and Commercial team

 

 

 

 

John Sheehan

Head of Corporate and Commercial

Telephone: 021 7300200

Email: jsheehan@jwod.ie

ADVOC shortlisted for ‘Global Network of the Year’ by The Lawyer

ADVOC, the leading international network of independent law firms, has been shortlisted in the category ‘Global Network of the Year’ in The Lawyer’s European Awards 2019.

ADVOC was founded in 1990 and is headquartered in London and facilitates business development, support services and networking amongst its 93 members. This year also marks J.W. O’Donovan’s 25th year of being a member of ADVOC. J.W. O’Donovan were the first Irish firm to join in 1994.

Member firms are invited to join ADVOC based on their extensive experience of commercial work within their jurisdiction. From this, when referrals are made between ADVOC members, clients can be assured that they are getting a comprehensive legal service in the relevant jurisdiction(s). ADVOC now has over 5,500 lawyers across its member firms, covering 72 countries worldwide.

In September 2018, J.W. O’Donovan hosted ADVOC members for the three day Europe Open Board Meeting.

For more, see:-

http://www.advoc.com/

https://www.thelawyereuropeanevent.com/SHORTLIST