Purchase or sale of a business is a complicated process for which competent legal counsel is essential. When representing clients in such transactions, we start the process by learning as much as possible about the client’s objectives in the transaction in order to advise him/her on a comprehensive set of issues ranging from business matters and financial risks to legal hurdles. Our goal is to identify possible challenges and put safeguards in place to prevent issues that may arise in the future starting at the time of initial proposal, continuing during the deal negotiations, the due diligence phase, the final closing, and the analysis of any post deal actions required to mitigate risks and liabilities arising from the transaction.
There are two primary methods of transferring ownership of a business, either by sale of the businesses’ assets or by the transfer of ownership of the entity itself:
Asset Purchase Agreements (APA)
This is a form of a business sale where instead of purchasing the stock of the company, the buyer purchases specific assets of the company and assumes specific liabilities. There are a number of issues that can arise in such transactions such as inventory, accounts receivable and payable, condition of assets, and lease of premises that must be addressed in the agreement.
Share Sale Agreements
In a share sale of a business, the purchaser is buying the shares from the shareholders of the company. Purchasers generally prefer not to buy shares in order to minimize both tax and legal liability issues.
Non-competition provisions
Purchasers will often require a provision in the Agreement which prohibits the sellers from competing with the business after the sale. The duration and geographic limitation of such provisions are negotiated by the parties. Courts will require such provisions to be reasonable so to not impinge on commerce and trade.
In addition to negotiating, drafting and reviewing business sale offer letters and agreements, we advise and assist business owners and investors with a wide range of issues including:
- Advising on practical business and financing issues related to the transaction
- Assisting with the selection of the right business entity, such as partnership, Limited Liability Company, S-Corporation or C-Corporation to secure the most desirable tax benefits and liability protection
- Advising on employment matters attendant to business transactions including contingency on the continued employment of employees and relocation issues
- Advising on discovering and managing liens and other corporate liability issues
- Negotiating terms and structure of earn-outs as part of compensation for sellers
- Advising on the laws of local jurisdictions affecting the business as well as any applicable licenses and permits required for legal operation of the business
Other important matters to consider include assignment of the business trade name, transfer of customer lists, training of new owners and staff, and introduction of new owners to important business contacts.
Given the complexity and scale of the issues involved in the sale of a business, it’s critical for both purchasers and sellers to retain an attorney with knowledge and expertise in such matters to guide them through the process and safeguard their interests.
|