PRINCIPAL, TOUCHSTONE LEGAL
Tony Clarke is a business and property lawyer with close to 25 years of experience and has been an Accredited Specialist in Business Law with the Law Society of New South Wales for over 15 years. Tony completed a Master of Laws with UNSW in 2006 and studied advanced contracts and intellectual property subjects in the course.
Tony has considerable experience in the following areas
business set-up and structuring advice;
company law advice (including advice on directors’ duties) and company law documents (including for the issue of shares);
customer and supplier contracts (including master service agreements);
distributorship agreements and licensing arrangements;
due diligence reviews and reporting;
franchise agreement reviews and advice;
lease reviews and lease preparation (including commercial and retail leases);
partnership agreements and advice;
privacy advice and documents (including privacy policies);
property transactions (sale and purchase) and property law advice (including strata issues);
sale and purchase of shares;
sale of and purchase businesses;
shareholder and unit holder agreements (including related advice on shareholder/ unit holder disputes);
software licensing (including software as a service);
stamp duty advice;
trade mark advice, trade mark applications and copyright law advice; and
trust law advice and documents (including establishment of discretionary trusts, unit trusts and bare trusts.
Examples of Tony’s work
Tony has recently conducted the following matters:*
For a tech start-up company Tony assisted with the following types of matters:
Online platform terms and conditions. These were bespoke in many respects to deal with the client’s business model and to provide the client with protection and flexibility for future planned features of the platform;
Contracts with channel partners, some of which were listed entities. This required careful and diligent negotiation of limitation of liability clauses to protect the client;
Fundraising by way of convertible notes and redeemable preference shares with founders; and
Trade practices vetting of all online material including advice on online chat replies to anticipated questions
The assistance provided was delivered in stages, with quick turnaround times and within budget.
Bespoke shareholders agreement
Tony assisted in preparing a complex shareholders agreement that dealt with three different categories of shareholders, foundation shareholders (to operate the business as if they were in a partnership), employee shareholders and investor shareholders.
The initial capital contributions of foundation shareholders were unequal but they were to each have an equal shareholding, with some foundation shareholders making up their contribution by way of a below-market salary for a fixed period. This was achieved by way of issuing different classes of converting redeemable preference shares issued for different amounts, which at the end of the fixed period would convert to an equal number of ordinary shares.
The agreement built in flexibility for an employee shareholder to become a foundation shareholder on retirement of a foundation shareholder.
There were different sale offer regimes where each type of shareholder wished to sell their shares – dealing with issues such as to whom they must first offer their shares and if there was no take-up or insufficient take-up, to whom they must then offer their shares (being foundation shareholders and then outside third parties), with a share buy-back scenario being used for employee shareholders wishing to exit.
Sale of shares in a technology start-up business
Tony assisted in the sale of shares by a technology start-up to an ASX listed purchaser. There were two groups of shareholders, majority shareholders who would continue to work in the business and minority investor shareholders.
The sale price included earn out components to vest over a number of years. The two groups had differing risk profiles in regard to vendor warranties, indemnification and limitation of liability having regard to their level of involvement with and knowledge of the business and the portion of the sale price they were to receive.
In order to balance these interests, a different vendor warranty and limitation of liability regime was devised as between majority and minority shareholders. This allowed the sale to proceed, and all shareholders understood their potential liability for a warranty claim and were satisfied with this mechanism
The sale was negotiated, documented and completed in less than three weeks, involving weekend and after hours work and the total legal costs for the sellers were lower than the estimate.
* Note that Tony conducted the above matters when he was a principal of a mid-tier firm, prior to his establishment of Touchstone Legal.
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