Buying and Selling Businesses

Purchase or sale of a business is a complicated process for which experienced legal and tax counsel is essential.  When representing clients in such transactions, we start the process by learning as much as possible about their objectives in the transaction in order to advise them on a comprehensive set of issues ranging from business matters and financial risks to legal hurdles.  Our goal is to anticipate challenges to proactively solve problems, from negotiations and due diligence phase to final closing.

There are two primary methods of transferring ownership of a business, either by sale of the businesses assets (Asset Sale) or by the transfer of ownership of the entity itself (Stock Sale):

Asset Purchase Agreements (APA)
This is a form of a business sale where instead of purchasing the stock of the company, the buyer purchases specific assets of the company and assumes specific liabilities.  There are a number of issues that can arise in such transactions such as inventory, accounts receivable and payable, condition of assets, and lease of premises that must be addressed in the agreement. 

Stock Sale Agreements
In a stock sale of a business, the purchaser is buying the shares of stock from the shareholders of the company.   Purchasers generally prefer not to buy stock in order to minimize both tax and legal liability issues.  Sometimes, this cannot be avoided, due to the nature of the business.  There are ways to limit liability - find out how.

Non-competition provisions
Purchasers will often require a provision in the Agreement which prohibits the sellers from competing with the business after the sale.   The duration and geographic limitation of such provisions are negotiated by the parties.  Courts will require such provisions to be reasonable so to not impinge on commerce and trade.

In addition to negotiating, drafting and reviewing business sale offer letters and agreements, we advise and assist business owners and investors in a wide range of issues including:

• Advising on practical business and financing issues related to the transaction
• Assisting with the selection of the right business entity, such as partnership, Limited Liability Company, or corporation - then deciding between S-Corporation or C-Corporation to secure the most desirable tax benefits and liability protection
• Advising on employment matters attendant to business transactions including contingency on the continued employment of employees and relocation issues
• Advising on discovering and managing liens and other corporate liability issues
• Negotiating terms and structure of earn-outs as part of compensation for sellers
• Advising on the laws of local jurisdictions affecting the business as well as any applicable licenses and permits required for legal operation of the business

Other important matters to consider include assignment of the business trade name, transfer of customer lists, training of new owners and staff, and introduction of new owners to important business contacts. 

Given the complexity and scale of the issues involved in the sale of a business, it’s critical for both purchasers and sellers to retain an attorney with knowledge and expertise in such matters to guide them through the process and safeguard their interests.

Our firm can guide business owners in the multi-stage process of buying or selling a business including:

• Advising on the structure of the transaction
• Negotiation of terms and drafting of the deal memorandum
• Advising sellers on legal strategies to address issues raised during the due diligence process
• Advising buyers on conducting legal due diligence
• Drafting, reviewing and negotiating the extensive documentation involved in a business transaction, such as asset purchase agreements, stock purchase agreements and security agreements
• Purchase or Sale of Franchises
• Review and Negotiation of Franchise Agreements