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COVID 19: Guidance and Support Hub
Our Business Sale Solicitors can:
Advise you on how to to prepare your business for sale e.g the structure of the transaction.
Limit your exposure, protect your position and your business if the buyer walks away e.g NDAs/Confidentiality Agreements.
Prepare your documents and respond to the due diligence enquiries raised by the buyer's solicitors.
Review and/or draft the Sale Agreement.
Explain what the Agreement means and point out any red flags.
Protect your future exposure by advising you on the warranties and indemnities.
How we can help with your Business Sale:
We advise numerous business sellers every year and are experienced at getting the deal completed as effectively and as quickly as possible. Our typical transactions values range from £10,000 to over £2, 000,000.
We can advise you on:
whether to sell assets/shares
Heads of Terms
You will have the support of a highly experienced team who regularly advise on all types of transactions to guide you through the process, and bring it to a successful and timely completion.
Because we act for both buyers and sellers, we understand the issues you will face from both sides and how best to protect you and your business.
What is a Business Sale?
A business sale is the sale of the assets or shares of a business.
There are, essentially, two ways to sell a business. One is to sell the assets of the company or the business (eg if the business is a sole trader or other entity) ,the other way is to sell the shares that make up the business. The two are different. If you sell the shares of the company all its assets, liabilities and obligations are also acquired by the buyer. If you sell the assets, the buyer only acquires the selected assets that it agrees to buy together with any liabilities that it agrees to take on.
An asset sale is therefore the sale of the business assets from the current owner to a buyer. The buyer and seller can be different entities e.g a sole trader, trust or company. The main feature of an asset sale is that the business assets change ownership from the seller to the buyer. This may cover:
all of the assets used in the business operations; or
only some assets.
f you are selling a sole trader or partnership business this will be an asset sale.
On the other hand, a share sale is the sale of the shares of the company that owns the business. This means that the assets of the business do not change ownership, as the company continues to own the assets. The ownership change happens through the shares being sold from the current shareholders to the buyer, who becomes the owner of the company’s shares on completion of the sale.
Business Sale Process
1. Structuring the Sale
Before selling your business you need to consider the structure of the deal.
There are several tax considerations to be taken into account when structuring your business sale as an asset sale or a share sale have different tax considerations for the seller. You will need to discuss the various tax implications of each type of sale with an accountant. We will always advise you to discuss whether you are eligible for Business Assets Disposal Relief (entrepreneurs’ relief) which at the time of writing offers:
10% capital gains tax for qualifying shareholders; instead of
20% the usual capital gains tax rate on a share sale.
This will help you decide how the sale should be structured.
You also need to ensure that your share structure is clear and that if a company you are aware of the provisions of your Shareholders Agreement. Are you clear on how your assets are held? Do you have any outstanding court claims or bad debts? Have you protected your Intellectual Property e.g Trademarks, Patents, Design rights etc at the Intellectual Property Office (IPO)?
You also need to decide on whether you would accept a cash payment on completion or stage cash payments or payment by way of shares. If you would like any members of the businesses current managerial team to continue to work in the business for a limited period of time e.g 6 months you may want us to include earn out provisions so that the the management team only receive some of the consideration when they achieve certain business targets.
2. Preparing a confidentiality agreement and heads of terms
Before you can start negotiations with your buyer you need to sign a confidentiality agreement, heads of terms and perhaps an exclusivity agreement. The heads of terms also called memorandum of understanding or letters of intent would set out the terms of the transaction as agreed in principle by the parties.
We generally advise clients to contact us for assistance in drafting these agreements as without legal advice you may end up agreeing in principle to terms that you may later regret which may as a consequence affect your bargaining strength.
3. The due diligence process
Once the buyer and seller have signed the heads of terms and other preliminary documents, the complex process of due diligence starts.
The due diligence process is a time for the Buyer to learn more about the target’s products, value and prospects, identify risks, liabilities and business problems in the target , assess how it will fit in with the Buyer ’s portfolios or companies before finalising the transaction thereby potentially avoiding financial loss and bad publicity.
Due diligence is an essential activity for a Buyer and Seller in a Business sale or purchase. It is a time consuming and intensive process as the Seller spends time and resources compiling information which the Buyer must then vet rigorously.
The process is usually conducted by the Buyer ’s accountants and legal representatives , who will raise enquiries relating to the target, its staff, business operations, accounts and historic trading performance along with its tax history. Purchasing a business without doing due diligence substantially increases the risk to the Buyer. It is therefore important for the Buyer ’s legal representatives and accountants to work closely together to ensure that the appropriate legal, commercial and financial due diligence enquiries are being raised in respect of the target business or company and that the relevant information is provided.
For further information, please click here.
4. Consideration of the key issues for the transaction
There are several issues to consider during the transaction ranging from warranties and indemnities, the equity structure, employees, their pensions and TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006, tax on business sales (Business Assets Disposal Relief) , negotiation of tax covenants and warranties, Intellectual Property, Information Technology, environmental issues and property issues. The seller and the buyer may also need to obtain consents and approvals from various bodies including regulatory authorities and if a limited company, the board of directors and shareholders.
5. Executing the key documents
In a business sale, there are generally a number of documents that must be completed. The share purchase or asset sale agreement are the keys documents for transferring ownership of a business from the seller to the buyer. As these documents are very complex it is essential that you obtain good legal advice from a qualified solicitor.
6. Completion and post completion
On completion of the sale, the buyer owns the business. There are several steps that the buyer and seller would need to take ranging from filing documents at Companies House if a limited company and contacting clients, customers and suppliers to ensure the maintenance of the businesses goodwill. Pure Business Law has experienced solicitors who can provide you with the advice that you need throughout the process.
Specialist Business Sale Solicitors
How can Pure Business Law help?
We are specialist business sale and business purchase solicitors based in Bedford and London and operate nationally.. If you are are thinking of selling a business or assets of a business , please contact us and book a consultation with one of our expert Business and Commercial Law Solicitors.
Our highly experienced Business and Commercial solicitors can advise you on all business matters, including Share and Asset Sales.
Get in touch
Excel House, 3 Duke Street, Bedford
3rd Floor, 86-90 Paul Street, London