Business Acquisitions and SalesAre you buying or selling a business?
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Business Purchases and Sales
When it comes to buying or selling a business (sometimes known as M&A or Mergers & Acquisitions), you need a lawyer who is responsive, protects your position without getting in the way of the deal, and who gives you a fixed fee and sticks to it.
At Your Business Lawyer, we specialise in small and medium sized business purchases and business sales. As our client you’ll get
- Excellent advice, both legal and commercial
- Fast and responsive – deals over the line as quickly as possible
- Plain English – limiting jargon and legalese
- Convenience – we’re digital, so there’s no traipsing into a boardroom office for constant meetings
- a fixed fee – so you know exactly what you’re paying in advance.
Share Purchases / Share Sales
The buyer buys all of the shares from the shareholders and takes the company with any debt, cash and assets.
Asset Purchase / Sale
The buyer cherry picks what assets they are buying – often when buying a non-limited company seller or if the target company has debts.
- Share Purchase v Asset Purchase - The Differences
- What is Due Diligence?
- What are the key clauses in any business sale agreement?
- What are the likely costs?
There are two primary methods of buying or selling a business in the UK. Share Purchase or Asset Purchase.
Share Purchase / Sale
Where the company being purchased (usually referred to as the “target”) is a limited company, then it is likely that the sale will be of the whole share capital of that company.
A share sale is where the buyer buys all of the shares from the current shareholders. The buyer becomes the new shareholder(s) and thus takes control of the target company warts and all. Meaning that all customers, goodwill, debtors, employees, liabilities including things like bank finance and leases, remain in the target company. The target company continues exactly as it was prior to the sale.
Share sales are dealt with by a Share Purchase Agreement.
If you’re selling shares, what you’re typically looking for is a clean break from the business, to get your money as soon as possible and to have no ongoing liability. If you’re buying shares, then you’ll usually want to build in protections such as warranties, deferred consideration periods and by carrying out detailed due diligence.
Asset Purchase / Sale
In an asset purchase/sale, the buyer acquires selected assets and rights out of the target company – cherry picking what it wants – and usually leaving behind liability. Asset purchases are necessary if the target is not a limited company, and you’re buying a partnership or sole-trader business.
There will be an Asset Purchase Agreement which documents what assets are being transferred.
Due Diligence is the process by which a buyer of a company, asset or business investigates the records of the target to support its value and find out whether there are matters on which it requires further information or which it should use as a platform to renegotiate the price. It is, at a basic level, an information gathering process to allow the purchaser to understand the risks (if any) the target may be subject to. The due diligence process is supported by the giving of warranties and indemnities in the acquisition agreement.
There are commonly three types of due diligence:
- Commercial – this is carried out by the buyer to decide whether or not to acquire the target company;
- Financial – the buyer’s accountants should then carry out a financial investigation into the target company to make sure that the proposed price is accurate and reflects its true value; and
- Legal – after the buyer is satisfied on the first two points, then the buyer’s solicitors will raise various questions of the seller’s solicitors.
Legal Due Diligence usually includes the purchaser creating a long questionnaire for the seller to complete, extending to and covering a wide range of questions about the legal aspects of the company. These will include:
1. Corporate structure and records
2. Share capital and shareholders
4. Finance and banking
5. Contracts and trading
7. Intellectual property
9. Consents and compliance
10. Litigation and disputes
12. Retirement benefits
13. Real estate
15. Health and safety
Obviously, as mentioned above, the main difference to whether you’re looking at a Share Purchase Agreement (SPA) or an Asset Purchase Agreement (or Business Transfer Agreement) is whether the deal is a share sale or asset sale. However, the agreements will still be lengthy and likely to include some of the following types of clauses:
Parties – sets out who is a party to the agreement, with their full name and details.
Background – sometimes known as recitals, sets out the basic premise of the contract.
Definitions – the best agreements often have lots of defined terms, usually in capitals, which are then referred to throughout the contract.
Commencement – when the contract is due to start or its effective date (often when signing).
Conditions Precedent – things which need to happen before the sale can take place
Sale / Purchase – the clause which says the seller sells and the buyer buys
Purchase Price – how this is made up, when and how it will be paid
Assets – if an asset sale, a schedule of assets will usually be included
Completion – what must happen on completion
Warranties – a list of promises/statements by the seller to the buyer, which if incorrect result in a claim by the buyer or reduction of purchase price
Limitations on claims – often there will be a “de-minimis” level below which the buyer cannot bring any claims. There will usually be an overall limit too.
Property – whether there is freehold or leasehold property which forms part of the deal
Tax Covenant – on share sales, to set out what happens to tax liabilities or credits post completion
Restrictions on the Sellers – usually a buyer will want to stop the seller setting up in completion for a period of time
Confidentiality – whether the deal is confidential or an announcement to be made
Boilerplate clauses – a range of relatively standard form clauses which include matters such as the non-assignment of rights, force majeure, whether English law should apply and the jurisdiction of courts for any dispute, confidentiality provisions, termination, variation, waiver. These are called boilerplate standard clauses, but are still very important.
Schedules – often contain details referred to in the main agreement, which could be information or things like specifications.
Execution – the part where everyone signs.
At Your Business Lawyer, we like to try where ever possible to agree fixed fees, or capped fees, for each deal. We find that this gives our clients better certainty than an hourly rate. Of course, there may be times where additional work is required or the deal changes, and we will always discuss and agree variations to the original fee. All fees are subject to Nexa Law’s terms of business, which will be provided prior to engagement.
As a rough guide, the following would likely fees:
|Consideration Sum||Acting for Seller||Acting for Buyer|
|<£50,000||£2,500-5,000 plus VAT||£3,500-6,000 plus VAT|
|£50,000-£500,000||£3,500-£10,000 plus VAT||£3,500-£15,000 plus VAT|
|£500,000-£2m||£10,000-£30,000 plus VAT||£10,000 – £40,000 plus VAT|
|£2-5m||£20,000 – £70,000 plus VAT||£25,000 – £80,000 plus VAT|
Why do you need a solicitor for a business sale/purchase?
Buying or selling a business is big thing for many people, and not something that all clients have done before. If you’ve not, then you need more than just excellent legal support; you need sound business advice as well.
Buying or selling a business will usually come in the following stages:
- You’ve found the buyer/seller
- You’ve agreed in principle what the deal is (sometimes called Heads of Terms)
- You now want to make sure that what your buying or selling is exactly what you agreed, and that there are no nasty surprises once money changes hands (Due Diligence).
- Contract negotiations
- Advice on warranties
- Actual transfer of shares or assets/contracts etc
From Our Founder
Why Choose Your Business Lawyer?
Hello, I’m Steven Mather the founder of Your Business Lawyer.
I’m passionate about providing excellent service to my clients. I’ve been doing it since I qualified in 2008, through a route which saw me become partner of Leicestershire based firm by age of 28, be featured in The Times as Lawyer of the Week, be a runner up for Solicitor of the Year and more besides,
I love working with small and medium sized businesses and the team of consultant solicitors I’ve assembled have huge expertise and experience in providing excellent service to clients.
It’s not just me saying it though, take a look at our client reviews – 5 stars all round.
But if you’re still unsure, pick up the phone or drop me a message and let’s have a free no obligation chat about your requirements and why I think Your Business Lawyer will be the best choice.