Business & Commercial Law
Legal Solutions for Business
Are you starting your own business, involved in a merger, acquisition or transfer? Maybe you are considering exiting? Does your business face an employment, financing, property, claim, litigation, restructure, compliance or contract issue? Thomas Barry and Company, Business Law Solicitors, provide the sound legal advice you need and also have the expertise to ensure you properly look after your own interests and those of your family?
We are thorough, available and proactive. Our Managing Partner, Thomas Barry, was one of the first Irish lawyers to receive a Masters in Business Administration (Trinity College, 1992). The skills he acquired are put to good use getting to know your business and the environment in which it operates. Forging a successful long-term relationship so that we become your go to port of call when faced with a legal issue is how we measure our success.
Our experience and expertise will help you reach a successful conclusion. The starting point is to contact us by filling in the Business Law enquiry form. Alternatively you can ring +353 1 677 3434.
The acquisition, merger, sale, transfer or purchase of a business is a milestone event. Care must be taken to properly plan and structure the transaction. Unfortunately, a very high proportion of all M&A’s fail. Thomas Barry & Company, Business Law Solicitors, can help ensure your interests are properly protected. Among the items that typically need to be addressed are:
- Contracts & customer agreements
- Due diligence
- Employee rights
- Method of disposal (e.g. share transfer or asset sale?)
- Non-competition & restrictive covenants
- Property, stock & assets
- Strategic fit
- Systems & technology
These types of transactions can be intricate. The sooner legal input is sought the better. We start by learning as much as possible about our clients’ objectives. This allows us advise comprehensively, anticipate challenges and proactively solve problems.
One of the first issues to be addressed is the method of disposal or acquisition. The two principal means of ownership change are share transfer and asset sale. Share transfer means ownership of the shares in the business transfer. The business continues to hold its existing assets and liabilities. An asset sale involves the sale of some or all of the assets of the business, normally without the assumption of liabilities. Many factors influence the choice of method of disposal or acquisition, not least of which is usually taxation.
Due diligence is often a key issue. This is the process whereby a purchaser seeks to ascertain as much as possible about the business to be acquired. The nature and extent of due diligence will be influenced by the size and complexity of the deal. The general rule is a buyer should delve as deeply as practicable. This holds true even, for example, in the case of a Management Buy Out (MBO) where the purchaser may feel he or she knows all there is to know about the target business. A seller is usually advised that while there are certain things which must be disclosed it is best to say as little as possible and avoid giving hostages to fortune. Whichever side of the transaction we occupy we have the systems and safeguards to steer you.
In recent years the status and treatment of employees has become central. Since the implementation of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, in most cases, if a business, or a part of a business, is taken over by another employer on a merger or transfer the employees and their rights also transfer. These include terms and conditions of employment, pension and other rights.
Change is Constant. All businesses and companies will at some stage have to adapt, restructure and reorganise. Change can be voluntary or forced and can arise for any number of reasons such as:
- Resignation or retirement of a key person
- Financial contraction
- New regulation
New structures, processes and procedures bring fresh legal challenges. To ensure your business properly adapts you will probably need legal advice on one or more of the services listed in this section.
Setting up a business is a bold step, which can lead to great success, fulfilment and satisfaction. We want to be part of your success by establishing a successful long-term relationship so that we become your touchstone when faced with a legal issue as your business grows.
Our motto is “People Deal With People”. We are thorough, available and proactive. Our Managing Partner, Thomas Barry, was one of the first Irish lawyers to receive a Masters in Business Administration (Trinity College, 1992). The skills he acquired are put to good use getting to know your new business and the environment in which it will operate.
With so many other bases to be covered new business owners/managers often omit to look after fundamental legal matters. “Prepare to fail, fail to prepare”. Thomas Barry & Company’s New Business Start Up consultation covers important issues of which a new business owner/manager should be aware including:
- The new business vehicle you should use e.g. a limited company, sole trader or partnership
- Whether you should have a Shareholders, Partnership or similar Agreement
- Company Registration / Incorporation
- The legal duties of Companies, Directors and Secretaries
- Protecting your business name
- Options for Intellectual Property Protection
- Whether you need Employment Contracts or Contracts for Services
- How to avoid bad debts
- Property options
Business owners need to plan how they would like their business to continue once they cease to have an active role. Leaving matters to chance, or to others, is a recipe for disaster. The succession will have a far greater chance of success if it is properly planned and structured. Thomas Barry & Company, Business Solicitors, can provide the guidance you need. Among the issues that arise are:
- the most appropriate exit mechanism
- would it better to sell and cash in? is this feasible?
- the evolution of ownership, control and management
- transitioning relationships with customers and key personnel
The mix of business and relationships can further complicate matters in a family business. To avoid unforeseen and unwelcome consequences it pays to get early legal advice. This is an area where Executive Self Care becomes critical.
Business-to-business agreements have a different legal character to business-to-consumer agreements. They do not have the automatic legal protections that are designed to protect uninformed or uneducated parties. Courts are slow to grant “opts outs”. Businesses are expected to know how to protect their interests. A major part of that responsibility is to understand what constitutes a valid and enforceable commercial agreement.
We can assist with the negotiation, preparation, drafting and advising on a wide range of business agreements including:
- Agency, distribution, licence and supply agreements
- Bespoke agreements
- Confidentiality agreements
- Franchising agreements
- Manufacturing and supply agreements
- Standard terms and conditions of business
- Transaction agreements
It never ceases to surprise how many senior executives, company directors, owners and proprietors of businesses give great amounts of their time and energy to running and promoting their companies yet neglect their personal affairs. We see helping hard working and effective people to ensure this does not happen to them as a core part of the Thomas Barry & Company business law service. Among the self care points with which we will help you deal are:
- Putting your affairs in order by making/updating your Will and/or completing lifetime transfers
- Tax optimisation
- Completing an Enduring Power of Attorney
- Tidying up property or other legal loose ends
Finance is the life blood of business. Thomas Barry & Company has the expertise and experience necessary to guide clients through the legal, regulatory and compliance issues to do with banking and finance.
Our finance and banking services include:
- Commercial Lending
- Acquisition, asset purchase, share purchase finance
- Invoice Discounting
- Review of Loan Facilities
- Guarantees and security
In uncertain economic times some companies have to face the unpalatable prospect seeking court protection and/or going out of business. If you are in this position it is better to face up to and try to control the situation rather than let others take the initiative.
Liquidation is the means by which a company is brought to an end and the assets and property of the company distributed. Liquidation can be by court order or voluntary. There is a designated order in which interested parties such as the Revenue, employees, financial institutions, general creditors and shareholders are paid
Examinership is a process whereby the protection of the Court is sought to assist the survival of a Company. Once the company is placed into examinership a window is given during which creditors cannot seek repayment of outstanding debts from the company.
In Receivership the Receiver is granted the legal right to receive and dispose of property belonging to others for the benefit of a secured creditor. A Receiver and Manager has the additional power to manage and trade with the company's charged assets.
In an ever more regulated business environment failure to observe the proper formalities or ensure compliance with a wide variety of regulations can have significant adverse consequences. The consequences can be both personal and corporate. Corporate governance has to be at the forefront of a business’s thinking. Issues that can arise include:
- Directors’ responsibilities and duties
- Directors’ service contracts and remuneration
- Disclosure obligations
- Company transactions and administration
- Share dealings
Wittingly or unwittingly businesses and their owners or managers can find themselves faced with authorisation issues, disciplinary proceedings before regulators or competition and consumer law investigations or prosecutions. Several different state, local and other bodies may need to be dealt with. Some of the more prominent are:
- Financial Regulator,
- Director of Corporate Enforcement,
- Financial Services Ombudsman,
- Data Protection Commissioner,
- An Garda Síochána,
- Takeover Panel
- Competition Authority.
- Environmental Protection Agency
- Consumer Protection Agency
Many have extensive inspection and enforcement powers which can dramatically affect how a business operates.
Shared vision and values, plus complimentary strengths and attributes, are a vital ingredient in the success of any business. It is important to be clear on expectations, responsibilities and exit mechanisms, especially in the event of retirement, sale, disagreement, death or incapacity. Among the options available are:
Shareholders Agreements - Where individuals use a limited liability company as the vehicle for a business activity it is advisable to have a shareholders agreement in addition to the Memorandum and Articles of Association. A Shareholders Agreement regulates issues such as how the business is run, how key decisions are made, the financial commitments of the parties, the rights of families and exit strategies.
Joint Venture Agreements – "JV's" are agreements between two or more parties on how they will collaborate in a common business project. The parties generally agree to share the profits and losses proportionate to their interests in the agreement.
Partnership Agreements – Such agreements regulate the way individuals or unincorporated companies work together. They cover much the same ground as shareholders agreements. One of the key differences between a partnership agreement and a shareholders agreement is in the area of responsibility for debts. With a partnership agreement, while the owners can decide how to allocate responsibility for debts between themselves, as far as the outside world is concerned they are all fully liable for any liabilities the partnership may incur. This is not the case with a shareholders agreement. Here the parties own shares in the company operating the business not the business itself and it is the company which is responsible for the business debts.