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Getting The Deal Through

Private M&A

Published: October 2018

Ireland


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  • 1.

    How are acquisitions and disposals of privately owned companies, businesses or assets structured in your jurisdiction? What might a typical transaction process involve and how long does it usually take?

  • 2.

    Which laws regulate private acquisitions and disposals in your jurisdiction? Must the acquisition of shares in a company, a business or assets be governed by local law?

  • 3.

    What legal title to shares in a company, a business or assets does a buyer acquire? Is this legal title prescribed by law or can the level of assurance be negotiated by a buyer? Does legal title to shares in a company, a business or assets transfer automatically by operation of law? Is there a difference between legal and beneficial title?

  • 4.

    Specifically in relation to the acquisition or disposal of shares in a company, where there are multiple sellers, must everyone agree to sell for the buyer to acquire all shares? If not, how can minority sellers that refuse to sell be squeezed out or dragged along by a buyer?

  • 5.

    Specifically in relation to the acquisition or disposal of a business, are there any assets or liabilities that cannot be excluded from the transaction by agreement between the parties? Are there any consents commonly required to be obtained or notifications to be made in order to effect the transfer of assets or liabilities in a business transfer?

  • 6.

    Are there any legal, regulatory or governmental restrictions on the transfer of shares in a company, a business or assets in your jurisdiction? Do transactions in particular industries require consent from specific regulators or a governmental body? Are transactions commonly subject to any public or national interest considerations?

  • 7.

    Are any other third-party consents commonly required?

  • 8.

    Must regulatory filings be made or registration fees paid to acquire shares in a company, a business or assets in your jurisdiction?

  • 9.

    In addition to external lawyers, which advisers might a buyer or a seller customarily appoint to assist with a transaction? Are there any typical terms of appointment of such advisers?

  • 10.

    Is there a duty to negotiate in good faith? Are the parties subject to any other duties when negotiating a transaction?

  • 11.

    What documentation do buyers and sellers customarily enter into when acquiring shares or a business or assets? Are there differences between the documents used for acquiring shares as opposed to a business or assets?

  • 12.

    Are there formalities for executing documents? Are digital signatures enforceable?

  • 13.

    What is the typical scope of due diligence in your jurisdiction? Do sellers usually provide due diligence reports to prospective buyers? Can buyers usually rely on due diligence reports produced for the seller?

  • 14.

    Can a seller be liable for pre-contractual or misleading statements? Can any such liability be excluded by agreement between the parties?

  • 15.

    What information is publicly available on private companies and their assets? What searches of such information might a buyer customarily carry out before entering into an agreement?

  • 16.

    What impact might a buyer’s actual or deemed knowledge have on claims it may seek to bring against a seller relating to a transaction?

  • 17.

    How is pricing customarily determined? Is the use of closing accounts or a locked-box structure more common?

  • 18.

    What form does consideration normally take? Is there any overriding obligation to pay multiple sellers the same consideration?

  • 19.

    Are earn-outs, deposits and escrows used?

  • 20.

    How are acquisitions financed? How is assurance provided that financing will be available?

  • 21.

    Are there any limitations that impact the financing structure? Is a seller restricted from giving financial assistance to a buyer in connection with a transaction?

  • 22.

    Are transactions normally subject to closing conditions? Describe those closing conditions that are customarily acceptable to a seller and any other conditions a buyer may seek to include in the agreement.

  • 23.

    What typical obligations are placed on a buyer or a seller to satisfy closing conditions? Does the strength of these obligations customarily vary depending on the subject matter of the condition?

  • 24.

    Are pre-closing covenants normally agreed by parties? If so, what is the usual scope of those covenants and the remedy for any breach?

  • 25.

    Can the parties typically terminate the transaction after signing? If so, in what circumstances?

  • 26.

    Are break-up fees and reverse break-up fees common in your jurisdiction? If so, what are the typical terms? Are there any applicable restrictions on paying break-up fees?

  • 27.

    Does a seller typically give representations, warranties and indemnities to a buyer? If so, what is the usual scope of those representations, warranties and indemnities? Are there legal distinctions between representations, warranties and indemnities?

  • 28.

    What are the customary limitations on a seller’s liability under a sale and purchase agreement?

  • 29.

    Is transaction insurance in respect of representation, warranty and indemnity claims common in your jurisdiction? If so, does a buyer or a seller customarily put the insurance in place and what are the customary terms?

  • 30.

    Do parties typically agree to post-closing covenants? If so, what is the usual scope of such covenants?

  • 31.

    Are transfer taxes payable on the transfers of shares in a company, a business or assets? If so, what is the rate of such transfer tax and which party customarily bears the cost?

  • 32.

    Are corporate taxes or other taxes payable on transactions involving the transfers of shares in a company, a business or assets? If so, what is the rate of such transfer tax and which party customarily bears the cost?

  • 33.

    Are the employees of a target company automatically transferred when a buyer acquires the shares in the target company? Is the same true when a buyer acquires a business or assets from the target company?

  • 34.

    Are there obligations to notify or consult with employees or employee representatives in connection with an acquisition of shares in a company, a business or assets?

  • 35.

    Do pensions and other benefits automatically transfer with the employees of a target company? Must filings be made or consent obtained relating to employee benefits where there is the acquisition of a company or business?

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Arthur Cox is widely regarded as the leading law firm in Ireland. We are one of Ireland’s largest and most innovative law firms. Today, the firm has over 500 legal staff, including almost 100 partners and a total staff of over 850.

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