Sale of Business – Why is the Apportionment between Goodwill and Equipment relevant? If your sale of business includes the transfer of both equipment and
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Most sales of businesses involve payment of a substantial sum for goodwill, an intangible asset. Be sure you are getting what you think you are paying for before binding yourself to a Business Sale Contract.
All businesses are different. Rarely does the real value exist in the plant and equipment. As such, sale of business transactions are more susceptible to ending up in expensive litigation if a buyer doesn’t feel that they got what they bargained for.
Our expert Commercial Lawyers will ensure that if you’re selling or buying a business all aspects of the deal are properly addressed so you can get on with business, retirement or your next venture sooner.
How We Help
Our Commercial Lawyers have extensive experience in buying and selling businesses and company mergers and acquisitions.
Buying or selling a business is a commercial transaction. Like every commercial transaction it is fundamental that a comprehensive, clear and accurate Contract be prepared and executed. The clear recording of the buyer’s and seller’s rights and obligations in a Business Sale Contract will ensure a smooth transaction and minimise the risk of expensive litigation if a dispute later arises.
Remember a business is not bought or sold until a Business Sale Contract has been signed and performed. If your business is located in NSW we can help.
Buying a Business
When acting for buyers our focus is to ensure that you get what you are paying for and identify and minimise risks associated with the purchase transaction and future operation of the business.
This is usually achieved through:
- Preliminary Exclusivity Agreements,
- The inclusion of conditions precedent in the Business Sale Agreement for essential matters, the novation of continuing contracts and key person employment,
- Legal due diligence and the negotiation of appropriate vendor warranties, and
- Special Conditions dealing with Earnouts, Retention Sums or Post-Completion Payments.
Selling a Business
When acting for Sellers our focus is to initially:
- Identify and manage issues that will likely be raised by the Buyer in due dilligence and which may lead to price reduction negotiations or the like,
- Ensure a Non-Disclosure Agreement is in place before any confidential or sensitive information is disclosed, and
- Ensure a clear and comprehensive Business Sale Agreement is available for signing at the earliest possible stage.
Ensuring the Seller is able to perform and enforce a signed Business Sale Agreement (and recover payment of the price is also essential). If the Buyer is a newly established Company or if Vendor Finance is part of the deal a personal guarantee and/or other forms of security will generally be appropriate.
When negotiating the terms of a Business Sale Agreement the scope of Vendor Warranties and the inclusion of limitation and exclusion clauses dealing with prospective liability are also important to protect the Seller should a dispute arise following completion.
When Should You Seek Legal Advice?
In most cases it is best that you speak to one of our Commercial Lawyers with extensive experience in business purchases and sales about the proposed sale or purchase of business before or during negotiations with the other party.
We will help you identify matters that you may have overlooked and can then raise directly in the initial negotiations. This will save time and avoid complications by us not having to raise the matter in negotiations after a Heads of Agreement have been prepared.
Our Sale of Business Services
We can assist with:
- Preparing a Business for sale and identifying factors that will effect price,
- Non Disclosure/Confidentiality Agreements,
- Pre-contractual negotiations and drafting Heads of Agreement, or Exclusivity Agreements,
- Drafting Business Sale Contracts and negotiations,
- Business Legal Due Diligence,
- Assignments of Lease or the Surrender and grants of a new Lease,
- Assignments of Franchise Agreements,
- Reasonable Restraints of Trade,
- Structuring Options for the purchaser entity,
- Transfers of Employees, Employment Contracts and Employee Entitlement Adjustments,
- Transfers of Business Names, Trade Marks, Intellectual Property, Domain Names,
- Transfers of Supplier Agreements and Licences,
- Business Debtors Adjustments,
- Loan & Security Agreements including Vendor Finance Agreements, and
- Option Agreements and Rights of First Refusal.