Buying or selling a business is an exciting time, and sometimes enthusiasm can overshadow rational decision making which can be detrimental to the overall result.
Initially, you need to decide whether the transaction will be an asset sale, where only the assets of a company or business are being sold, or a share sale, which can bring with it the risk of purchasing the historic liabilities of the company.
Once you have decided whether it is an asset sale or share sale, it is important to seek professional advice and assistance on each stage of the transaction, including but not limited to:
- the pre-contracted negotiations including drafting an effective heads of agreement and essential terms to ensure that all parties are on the same page;
- the deal structure and negotiating the terms of the contract;
- carrying out due diligence and the balancing between protecting the confidential information of the business and the need to provide full disclosure;
- obtaining clear title and dealing with PPSA registrations, which are currently the number one cause of delays in settlement;
- attending settlement to ensure that all contractual obligations are satisfied; and
- handling all post settlement obligations including the observance of restraints of trade and attending to the lodgement of various transfer documents.
Within each of the above stages there are multiple factors which can hold up settlement.
Offering clear title, transferring employees, and transferring licences and permits all require dealings with third parties and if not dealt with promptly, by someone who has the necessary expertise, can cause significant delays or even result in the transaction falling through.
Strategic planning and knowing exactly what you want to buy or sell can help to avoid many common pitfalls associated with business sale transactions.
If you are considering selling your business, or buying a business, contact one of our experienced commercial lawyers at Scanlan Carroll prior to signing any heads of agreement or contract of sale to ensure that you actually get what you bargained for.
This bulletin is provided for general information purposes only. Each person’s circumstances are different and the information contained in this bulletin should not be relied upon as a substitute for legal advice.
The information in this bulletin is current as at the date of publication.