The usual sequence is: find a buyer, agree a price, sign heads of terms recording a structure, instruct solicitors, and somewhere in the following month discover what the structure means. By then the structure is effectively fixed — not legally, but commercially, which amounts to the same thing.
Why It Cannot Be Fixed Later
Heads of terms are generally not binding on the commercial terms, so a structure recorded there is not legally set. In practice, though, by the time anyone wants to change it: the price has been agreed on assumptions that depend on the structure; the buyer has begun due diligence on that basis and incurred cost; the buyer’s own tax analysis may have been done; and the party proposing the change is asking the other side to accept a different economic outcome, from inside an exclusivity period, having already spent months. That is about as weak a negotiating position as a seller can construct. The structure question is not difficult to answer — it just has to be answered first. And the reason it belongs with an accountant rather than a solicitor is straightforward: the choice between an asset sale and a share sale turns very largely on tax treatment, and the seller’s personal position and the selling company’s position are different questions again.
What This Firm Will and Will Not Do
Will not: advise on tax, name a rate, a threshold, a relief or a condition, or indicate any tax outcome. Nothing anywhere on this website does any of those things, deliberately. Those questions belong with your accountant or tax adviser and with Revenue’s own guidance. Will: tell you plainly that the tax question has to be answered before heads of terms are signed, and decline to draft around a structure nobody has checked. That second part is not obstructiveness — a solicitor who papers whatever structure appears in the heads of terms, without asking whether anyone has tested it, is not serving the client. Practical points worth carrying to your accountant: ask about the position of the company and your position personally; mention how the price is to be paid, because deferred consideration and earn-outs can raise their own considerations; and if this is a retirement exit, ask about it in the round rather than as a single transaction, because what happens to the proceeds afterwards is part of the same conversation.
If heads of terms are already signed, this is late rather than hopeless. Get the structure reviewed promptly, and have the heads read for what actually binds — particularly the exclusivity and costs provisions.
Structure question still open? 01 5827148.
Richard O’Shea — Solicitor & TEP
Solicitor at Mary Molloy Solicitors, established 1981, and a TEP of the Society of Trust and Estate Practitioners. The firm acts for buyers and sellers on business sales and acquisitions — structure, heads of terms, due diligence, the sale agreement, warranties and disclosure, completion and what follows it. Because a substantial share of Irish business sales are retirement exits, the firm’s estate and succession practice sits alongside the transactional work: the deal and what happens to the proceeds are usually the same client’s problem. Nothing here is tax advice — structure is tax-driven and that belongs with your accountant and Revenue, before heads of terms are signed. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. This website contains general information about Irish law on business sales and acquisitions. It is not legal advice and does not create a solicitor—client relationship. Every transaction turns on its own facts — the structure, the documents, the parties, the consents required — and advice on yours requires a consultation.
Nothing here is tax advice, and tax drives structure. The choice between an asset sale and a share sale is very largely a tax question, and it should be settled with your accountant or tax adviser, and by reference to Revenue’s own guidance, before heads of terms are signed rather than afterwards. This firm does not advise on tax, does not state rates, thresholds, reliefs or conditions, and does not indicate any tax outcome.
No valuation advice. This firm does not value businesses, does not suggest multiples and does not advise on price. Valuation is for accountants and corporate finance advisers, and it is a separate exercise from the legal work.
Never both sides of the same deal. The firm acts for buyers and, in separate transactions, for sellers — but never for both parties to the same sale. Conflicts are checked at first contact, before any substantive discussion, which is why the first email should name every individual and entity involved.
No outcome or timeline is promised. Nothing on this site states or implies that a transaction will complete, that a consent will be obtained, that a warranty claim will succeed, or that any deal will proceed to a particular timetable. Where another jurisdiction is involved, the law of that jurisdiction applies to what happens there and requires local advice; this firm advises on Irish law only.
Fees. Fees are agreed in writing with the client at the outset. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.