Buying or selling a business

Whether your business, or the business you are buying or selling, is large or small, and whether the transaction is an asset sale or a share sale, our team can assist you to prepare for, negotiate, manage, and complete the transaction.

We have assisted clients on many business sale and purchase transactions (big and small) across a variety of industries including manufacturing, retail, franchising, real estate, professional services, medical, automotive, and commercial.

Buying a Business / Selling a Business – Typical Issues
The level of complexity and typical issues associated with buying or selling a business depends on a number of factors, including (but not limited to):
• the nature of the industry within which the business operates;
• statutory and other regulatory requirements;
• the size of the business;
• the location of the business;
• the nature of operations;
• the asset classes;
• the employment arrangements and industrial relations environment;
• the extent to which the business utilises land; and
• the relevance of intellectual property to the business.

How can we assist you to buy or sell a business?
We strongly suggest that you speak to us in the early stages of buying, selling, merging, or restructuring your business for the following reasons:

• we can assist with the preparation of a ‘Heads of Agreement’ to lock in a binding agreement on key terms, which allows the details to be documented subsequently;
• we can assist with due diligence for both vendors (to ensure your ‘house is in order’ and you maximise your sale price) and purchasers (to ensure you know exactly what you are buying and you pay a fair price for it);
• we can advise you on business structuring and asset protection measures;
• we can assist you in your negotiations; and
• we can help you navigate through any regulatory and banking requirements so that your transaction is not bottlenecked.

Buying a Business / Selling a Business – Due Diligence
People always talk about ‘due diligence’ but you might wonder how relevant it is to what extent it applies when you are looking to buy a business. Let us assure you that it is relevant to all business purchases and sales and those who avoid it, or who fail to give it credit, do so at their own risk.

Due diligence is not something that should be overlooked when buying a business or selling a business.

Due diligence is relevant to both vendors and purchasers and is not something that happens overnight. If you are a vendor you should take time to review and coordinate your business affairs so you can be sure that the business is compliant, organised and complete. Once you open your business up for investigation by potential purchasers they will be looking for holes and, if they find any, it will be reflected in the purchase price or you could lose a deal altogether. On the other hand, if you are the purchaser it is normal practice to give yourself adequate time to conduct your due diligence so that you (and generally your financiers) are satisfied that the business you are buying is what the vendors represent it to be, is compliant and is fairly priced.

The scope and extent of due diligence will depend on the those matters highlighted above but typically includes a review of:
• corporate structure and governance documents;
• regulatory licences;
• permits and approvals;
• material contracts;
• employment records;
• asset condition reports;
• finance agreements;
• commercial leases and real property documents;
• active litigation;
• insurance document;
• public searches of corporate data; and
• intellectual property.

Buying a Business / Selling a Business – Commercial Leases
If you’re buying a business that leases existing premises, it’s important that an experienced lawyer review the lease to ascertain what the process is for transferring that lease and what the lease terms are. It might be the case that the lease you are about to take over contains unfavourable terms that you wish to vary, such as the rent review process, termination rights, works clauses, indemnities and lease term and options. We will advise you in this regard and can negotiate with the owner of the property to either vary the lease or negotiate a new lease to suit your requirements as part of obtaining consent. This is typically done at the same time as you are negotiating with the vendor. Bear in mind that although the vendor might have the relationship with the property owner, the vendor has no incentive to improve the lease position because they are about to sell to you.

Buying a Business / Selling a Business – Regulatory Compliance
Another important consideration when buying a business is to make sure you have (or obtain) all necessary regulatory licensees, authorisations and permits required to legally conduct business at the premises. As part of the due diligence we can check the validity and adequacy of those licences, authorisations and permits held by the vendor. However, there may be additional authorisations that are now required due to changes in law or policy, and in many cases licences are not transferable, but will require the purchaser to go through a new application process.

We understand that different types of businesses have varying levels of regulation and that specific authorisations may be required for your industry.

As part of your business acquisition process we can help you obtain these licences in a timely manner as we understand the typically detailed requirements of the relevant authorities.

Buying a Business / Selling a Business – Other Considerations
Does the business have any key contracts with customers or suppliers? These will need to be reviewed to ensure they are enforceable and do not contain any unfavourable hidden provisions.

Does the transaction include stock? If so, the contract will need to outline a stock take process.

Is there any plant and equipment the subject of the sale? If so it might be necessary to obtain valuations of that plant and equipment and warranties from the vendor regarding its condition.

Details will need to be provided by the vendor about all current employees so you can negotiate with the vendor as to whether some or all of those employees will be offered extended employment and a decision then needs to be made whether you, as the purchaser, will be retaining all, some or none of those employees. Do any of these employees have written employment contracts? We can advise you on the Fair Work legislative requirements for transferring staff

We can work with you and your accountant to review financial statements for the business if required.

If your purchase is being financed by a bank we can manage the bank’s requirements regarding due diligence and contract documentation.

Depending on the nature of the business it might be the case that the purchaser needs some transitional handover assistance. If so we will ensure this is negotiated and agreed with the vendor and properly documented.

A common issue facing purchasers of businesses is to protect the goodwill of the business that they have just paid for by restraining the vendor from setting up a competing business for a period of time. We can guide you through the legalities of these restraint of trade concepts to ensure that a mutually agreeable position is negotiated.

How you purchase your interest
To maximise your asset protection, as well as to assist in taxation planning, we can assist in advising in regards to the best business structure to purchase your business. This can be achieved through companies or discretionary or unit trusts.

Managing Disputes
We offer a variety of shareholder, unit holder and partnership agreements. If you are entering into a purchase with another party it is essential that you are on the same page about how the business will be managed and operate, and what happens if you cannot agree. It is also important to document how a party can exit the business and what happens to their interest.

Whether you’re an aspiring entrepreneur seeking to acquire a company or a seasoned business owner contemplating a strategic sale, our skilled legal team can provide critical support. Contact us on [02] 91 91 92 93 or if you require advice in purchasing or selling of business.