We have a specialist, highly experienced team of commercial lawyers to advise on buying or selling businesses and are known for a practical, commercial yet thorough approach which is cost proportionate and effective. We handle transactions ranging from sales of £100,000.00 or less up to multi-million pound deals.
Whilst a number of the issues remain the same regardless of the sale price, we fully understand that with small businesses, legal and other costs must be proportionate.
In many cases, we are instructed from the outset, including the negotiations, due diligence and heads of terms and we advise clients who are buying on how to find out at the earliest stage whether there are issues which they should consider as deal breakers. Our lawyers general approach however is always to facilitate a deal happening rather than finding reasons to advise clients not to proceed.
Selling or buying a business requires careful planning and good advice well in advance to make it as painless as possible. It is extremely important to keep the business running whilst the negotiations take place. Speak to our solicitors for further advice.
A difficult area and one of the areas in the contract where disputes, delays and costs can, if a commercial and practical approach is not adopted by both parties and their lawyers, mushroom. Warranties are factual assertions about the business, it’s performance, assets, liabilities and litigation, given by the sellers to the purchasers in order to give the purchaser comfort that matters relating to the business are as stated, and buyers generally like such comfort as personal responsibility and liability usually attaches to the sellers as individuals on an ongoing basis, generally for a fixed period post completion of the transaction.
For the same reason, business sellers and their solicitors generally seek to avoid giving such warranties and will argue that warranties are unnecessary if the buyers and their solcitors have undertaken due diligence. Matters can also be complicated if the buyer requires bank finance for the purchase as the buyer’s lenders may have their own advisors and the bank or it’s advisors can be quite inflexible as to requirements.
Typically with a small business, that business will have revolved largely around the owners, who have been fundamental to it’s success. Buyers may well need some assistance from the seller for a period post sale to get to grips with the business and to transition staff and external relationships.
It is therefore common for sellers to be required to stay on post completion. The flip side of the situation where the seller has been instrumental in the business success is that the buyer may require the selling parties to covenant not to compete with the business for a set period post-sale. This may also include restrictions on poaching customers or staff. Care is always needed with drafting covenants since if they are too wide they may be found by a court to be unenforceable, in whole or in part.
A lot of time, cost and friction is spent on warranties, especially where the full purchase price is paid on completion. Whilst a seller will naturally want to resist any form of deferred payment, a compromise may be available in the form of an earn-out, whereby the seller receives some of the business sale funds at post completion, based on set criteria which may be performance based part of the purchase price is deferred for a period of time to ensure that certain unclear issues have not proved problematic.
The purchaser may be concerned, if all the consideration is paid at completion, that he will later find the vendor is hard to trace, leaving the purchaser to deal with anything that he sought to protect himself against in the warranties, himself. Therefore, a useful mechanism can be deferred consideration, whereby a certain amount is paid upfront and the rest over a period of time (usually the warranty period). Other mechanisms that can be used would be to have part of the consideration paid into an escrow account managed by both parties or their lawyers as security for the warranties.
In our experience, negotiating a company sale will take at least a month, and in most cases 2 to 6 months. There are likely to be at least one or two weeks where key personnel in the seller business will need to be available either by telephone or attending meetings in order to ensure that matters are dealt with and that negotiations run effectively. It is therefore important that you plan your resources carefully to ensure that the continuity of the business is not affected.