Business sale checklist

There are many legal issues to consider when contemplating the sale of your business.

While the following is not an exhaustive list, it provides an overview of some of the key issues you should consider.

  • The proposed structure: a fundamental issue to consider is what are you seeking to sell – the shares in your company or the assets which it owns? There are advantages and disadvantages in both cases (including from a tax perspective). Engage a tax specialist early.
  • Due diligence and preparing for sale: are key legal and financial documents up to date and easily accessible? Proposed purchasers will seek to carry out some level of legal and financial due diligence. Getting your business ready for sale will make it a more attractive proposition to proposed purchasers.
  • Protection of confidential information: to protect against the disclosure of confidential information, proposed purchasers should be required to enter into confidentiality agreements.
  • Exclusivity: proposed purchasers could seek a period of exclusivity to negotiate and finalise the terms of the deal. Whether it is appropriate to enter into an exclusivity arrangement will depend on the circumstances.
  • Valuation: if the company’s shares are not freely traded, valuing the business can become complicated. Valuations based on EBITDA or multiples of earnings are commonly used.
  • Consideration: the structure of the consideration (for example, cash, scrip and / or debt) and the manner in which it will be paid will be the subject of negotiation. It is not unusual for portion of the consideration to be deferred until certain agreed milestones have been achieved.
  • Conditionality: will completion of the transaction be conditional on the happening of certain events? For example, making the transaction subject to the purchaser receiving finance is common place. The receipt of all required approvals is another commonly required condition.
  • Restraints of trade: are you willing to be restrained from undertaking a competing business following completion of the transaction? Depending on the circumstances, this could be required by the purchaser.

These business sale issues should be covered off in the Sale Agreement.  Engage a lawyer early to advise you on the legal issues associated with the transaction and to negotiate and prepare the sale agreement on your behalf.