BUYING OR SELLING A BUSINESS
Buying or selling a business is a complex transaction which should only be undertaken by you in collaboration with your Solicitor and financial advisers.
The initial discussions and agreement as to the purchase price and time line for completion will eventually give way to a detailed forensic examination of the business you intend to buy or sell. Thus it is important form the outset, particularly when you are selling a business, to be guided by your Solicitor who can advise on the sale and anticipate what a purchaser/seller will be seeking/furnishing during the transaction.
Burns Nowlan LLP, retained to advise on the sales of numerous businesses with a combined value of over twenty million euro, have extensive experience in the details sought and documentation required for these transactions. Working in association with your Accountants we assure you that our advice will result in the smooth completion of the agreement you have entered into.
The following are some of the terms and documentation used:
Letter of Intent /Heads of Terms
The is a document which will represent the agreement as between a buyer and seller recording the essential elements as discussed and eventually agreed. As it is a record of the main terms of the agreement it is essential that this has issued before the transaction proceeds.
Due Diligence
This will prove to be the most exacting process of the entire transaction and therefore it is essential that it is conducted with attention to detail. It is hugely important in any commercial transaction. It covers all aspects of the sale of your business. Among the details sought are the following:-
- A full financial review of the company’s financial affairs;
- A review of all documents and registers of the Company ( share registers, share certificates and filings in the CRO);
- A review of the corporate structure of the company;
- A review of the insurance cover and any current claims;
- An investigation of title to any properties included in the transaction;
- A review of all employee contracts including a review of the position of the employees under TUPE, the contracts of employment; whether employees are full or part time and details of any employees claims whether current or past ; and the policies relating to your employees.
- Enquiries into areas specific to the company/assets;
A tax review in association with the Company Accountant will be required to ensure that no unanticipated tax liability issues will arise. - A review of your IT structure and policies ( including cookie policy).
A data room will normally be created into which all the company records, books and data are uploaded and stored during the due diligence process. At the completion all data is downloaded and retained by both buyer and seller in case issues arise at any future date.
Asset Sale Agreement
This is used when a buyer wishes to purchase assets from a company and leave behind liabilities both actual and contingent. An asset sale agreement may allow the purchaser flexibility in regard to the assets being purchased and the employees being retained.
Share Purchase Agreement
This will be used if the buyer seeks to acquire the shares in the company.
Disclosure Letter
The disclosure letter allows provides the seller to disclose against the warranties provided in the other documents (SPA) which reduces the seller’s exposure to post completion damages.
Completion of Purchase/Sale
On completion, the buyer’s solicitors will look for the following, among others, to be furnished:
- Executed Share Sale Agreement/Asset Sale Agreement/ Business
- Purchase Agreement;
- Executed share transfer forms;
- Disclosure letter;
- Resignation letters of the Directors and Auditors;
- Statutory registers and company seal;
- Indemnities for missing share certificates;
- Tax Covenant.
For further advice please contact Stephen McGrath at 045 432382 or smcgrath@bnsolicitors.ie.
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