Business Purchases and Sales
No two business sales are alike. Each business has special characteristics that make it attractive for a buyer to buy and for a seller to sell. The purchase and sale agreement has to accommodate both parties. Don’t take on the risk and hassle of a business purchase or sale alone. Team up with an attorney who understands the business, will fight for your best interests, and is experienced in contract law.
Generally, the purchase or sale of an incorporated small business will be in the form of either:
- an asset purchase, where the buyer purchases some or all of the seller’s assets. This transaction is often favored by buyers because you get the assets, like equipment and inventory, without taking on the seller’s debts and liabilities.
- a stock purchase, where the buyer purchases all or most of the seller’s stock and “steps into the shoes” of the seller. Sellers often like this transaction because the buyer assumes all of the seller’s debts and liabilities.
Regardless of how the transaction is structured, the deal usually flows like this:
- preliminary negotiations
- drafting a formal agreement and pre-closing review
Preliminary Negotiations & Discussions
At this stage, the buyer does its investigation of the seller to determine the value of the business or assets it is buying. This usually involves an extensive review of the seller’s finances and assets so the buyer (and their attorney) can make their own determination regarding value. How much due diligence the buyer does will depend in part on whether it’s a stock or an asset sale. More due diligence is required in a stock purchase since in addition to assets, the buyer is also taking on the seller’s debts and liabilities.
The parties should discuss and determine other matters at this time, including:
- if shareholder or board of directors’ approval is required
- whether any government or other third-party documents are required (e.g. a certificate of good standing or title documents)
- if any contracts require third-party approval before the buyer can take them over (e.g. leases or loan agreements)
- how long the buyer and seller are willing to keep the deal open
- a binding promise by the purchaser regarding confidentiality of the seller’s trade secrets, like customer lists and other sensitive company information
- a binding promise by the seller not to negotiate a sale with any other prospective purchaser for a certain period of time
Formal Agreement & Pre-Closing
A formal, final agreement is the culmination of the negotiations. It contains all the details of the deal: the price, the terms of the deal, when the business or assets will be turned over, whether they will be held by an escrow agent, and other important aspects of the arrangement. Usually, the agreement goes through many drafts and is finalized for the pre-closing and then signed at the closing.
At the pre-closing, there are many details to attend to. Both the seller and the buyer will want to make sure that all the proper documentation is in place to finalize the deal at the closing. Again, the extent and type of documentation will depend on whether it’s a stock or an asset sale.
Closing is when the deal is completed. It’s a paper-intensive process. At this time, you’ll want to make sure:
- all documents are signed and notarized if required (such as deeds and lease assignments)
- the sales proceeds are disbursed properly in accordance with the terms of the agreement
- to record documents such as deeds and certificates of title to motor vehicles and other equipment or property
Business Sale Attorney
When Dolan Law Firm represents the seller, Attorney Dolan strives to get the best possible price on the best business terms, with limited non-competes and post-closing liabilities. We also take great care to keep the potential sale confidential until the client is ready to disclose a change of ownership to the public.
Business Purchase Attorney
When Michael Dolan represents the buyer, Dolan Law Firm strives to obtain the best value for the client and ensure the client buys exactly what they think they are buying, including rights to trademarks, patents, licenses and receivables. Attorney Dolan also strives to ensure that liabilities arising from prior ownership are minimized, if not altogether eliminated.
Consult a Business Purchase and Sale Attorney
As early as possible in the process, it’s a good idea to consult a lawyer to help make sure that you get the deal you’re after. Minimizing taxes and potential liability issues are usually the major concerns for buyers and sellers figuring out how to structure a deal. A business purchases and sales attorney can ensure that the seller and buyer both emerge from the transaction satisfied with the process as well as the outcome. Michael Dolan has experience on both sides and is ready to negotiate on your behalf. For a free consultation, contact Dolan Law Firm today!