Purchase or sale of a business is a complicated process for which experienced legal counsel is essential. When representing clients in such transactions, our attorneys start the process by learning as much as possible about the buyers’ objectives in the transaction in order to advise him 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, from negotiations and the due diligence phase to the final closing.
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.
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.
Preparation and Review of Business Contracts
In consultation with business owners, we review, draft and negotiate contracts related to various business activities, including:
- Buy-sell agreements
- Service contracts
- Releases and waivers
- Property agreements
- Shareholder agreements
- Operating agreements
- Lease agreements
Buying and Selling Businesses
Our firm can guide business owners in the multi-stage process of buying or selling a business, including:
- Advising on the structure of the transaction
- Negotiation of terms and drafting of the deal memorandum
- Advising sellers on legal strategies to address issues raised during the due diligence process
- Advising buyers on conducting legal due diligence
- Drafting, reviewing and negotiating the extensive documentation involved in a business transaction, such as asset purchase agreements, stock purchase agreements and security agreements