Buying and Selling Businesses

Buying or selling a business is one of the biggest decisions you are likely to make so you need to ensure that you have lawyers that speak your language and have the requisite skills to get the deal done.

Whether you are considering buying, investing in, or selling a business, our specialist team can provide assistance and guide you thorough the process. We are proud of our record in acting for business owners, whether in pursuing their plans for growth or implementing exit strategies.

Our team can advise on the structure of the deal, whether what you are buying or selling is a company (share purchase or sale), or its business and assets (asset purchase or sale).

Asset sale/purchase

Our team can represent you in respect of your asset sale or purchase. An asset sale is when the buyer purchases the seller’s business and its assets but not the seller’s company. For example, the buyer may decide to purchase the goodwill of the business, its stock and equipment and take a lease of its premises. What the buyer will not purchase is the limited company from which the seller runs the business.

Share sale/purchase

A share purchase is different to an asset purchase in that the buyer in a share purchase transaction purchases the shares of the seller’s limited company, rather than picking off specific assets of the seller’s business. This means that the buyer is taking the company with its complete trading history and all its liabilities. For that reason the due diligence undertaken for a share purchase is usually more extensive than for an asset purchase. The same can be said for the amount and extent of warranties likely to be insisted on by the buyer.

There are likely to be tax implications for you depending on how the deal is structured and therefore you should seek advice from your accountant on this point.

Heads of terms and due diligence

Once a decision has been made regarding the deal, we can prepare and negotiate the content of Heads of Terms to be signed by the buyer and the seller.

Due diligence is the process whereby the buyer can ask the seller detailed questions about the business so that they can ensure that they have a complete picture of the business they are buying. Our team can assist and guide you through the due diligence process, if you are the buyer to advise upon the questions that you should be asking, and if you are the seller to advise upon your replies to the questions raised by the buyer and to assist in collating the relevant documentation to be disclosed.

Asset sale and purchase agreement/share purchase agreement

Once the due diligence process is complete we can draft the relevant contract, an Asset Sale and Purchase Agreement if the deal is structured as an asset sale, or a Share Purchase Agreement if the deal is structured as a share sale. Our team can provide extensive advice regarding warranties, indemnities, apportionment and post-completion covenants. Our team will liaise with your accountant regarding the tax warranties and tax covenant (if appropriate).

Our team will also provide advice regarding the Disclosure Letter and bundle which needs to be prepared by the buyer as well as other ancillary documents such as resignations, board minutes and forms to be filed at Companies House.

If you are considering buying or selling a business contact our Commercial Team for assistance. With our expertise and experience we can help you achieve your objectives with cost effective and commercial solutions.

Franchising

If you are considering purchasing a franchise our legal team can review the franchise agreement to help you understand the obligations that you have under the complicated documents.

An asset sale is when a buyer purchases the assets of a business which could include, for example, the equipment owned by the business, the goodwill of the business, the trading name and a lease of the premises from which the business trades. A share sale is where a buyer purchases the shares of a limited company. There are differences in how tax is calculated between an asset sale and a share sale and we always advise our clients to speak to their accountant in order to ascertain how best the deal should be structured for them from a tax perspective.
If during the due diligence process a potential buyer is likely to obtain information in relation to your business that could harm the business in the event that the sale falls through and the information or knowledge that they have learnt is repeated to others, then we would suggest that you ask the buyer to enter into a non-disclosure/confidentiality agreement.
Due to the nature of a share purchase and the fact that the buyer is purchasing the shares of the company with all of its history, there is usually more due diligence to be undertaken by a potential buyer in a share purchase, meaning that a share purchase is likely to take longer than an asset purchase. That said, each case is of course different and if the potential buyer did not wish to undertake extensive due diligence, the process could be completed more quickly. In a share purchase there are various ancillary documents to be drafted and negotiated in addition to the Share Purchase Agreement such as resignations, board minutes, Companies House forms, a disclosure letter and a consultancy agreement, if relevant. There are usually less documents to negotiate in an asset purchase and this coupled with the fact that less due diligence may be required to be carried out by the potential buyer, means that an asset purchase will usually proceed more quickly than a share purchase.
Warranties are promises that the seller gives about the business they are selling and if the seller is found to be in breach of warranties following completion of the sale, the buyer can bring a claim against the seller for breach of warranties, subject to any limitations set out in the Asset Sale and Purchase Agreement or the Share Purchase Agreement.
A disclosure letter is a letter prepared by the seller which makes disclosures against the warranties that they have given. For example, the Asset Sale and Purchase Agreement or Share Purchase Agreement may contain warranties that the seller is able to give but there may be relevant information in relation to those warranties that they feel should be disclosed against them. The disclosure letter is one of the documents that will be negotiated during the transaction so that the buyer and seller are both happy with its content. If the seller has disclosed information in the disclosure letter, the buyer is unable to bring a claim against the seller arising from those facts following completion.

For further information or to speak to one of our experts, please get in touch

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