The purchase and sale of a business can be a highly lucrative transaction for all parties involved. However, to maximize the benefits of a sale and reduce the risk of unnecessary losses or liability, you need to take many steps to properly consider and address every aspect of the transaction. There is a lot at stake when ownership of a company changes hands. Any error or omission during this process—on the part of either the buyer or the seller—can prove costly. If you want to purchase or sell a company, you need the assistance of a highly experienced business attorney from the beginning.
At Braverman Law PC, we help business owners and prospective purchasers successfully complete transactions that will hopefully breed success for all parties. If you are considering the purchase or sale of a closely held business, please contact our office to learn about our legal services today.
Letter of Intent
Once a party settles on a target company to purchase and wants to initiate negotiations, it can draft and present the target company a letter of intent (LOI) or term sheet. This is not the final sale contract but instead a preliminary document that serves as a type of roadmap for the rest of the transaction. Care must be taken to make sure that the LOI is not legally binding, unless that that is the wish of the parties. Ordinarily, a buyer will want the ability to walk away if a better offer arises and will not want to be bound to negotiate in good faith if, for whatever reason, the buyer decides not to proceed. Any LOI or term sheet should be reviewed by counsel.
Another important preliminary step is to have a prospective purchaser sign a non-disclosure agreement (NDA). For a potential buyer to make a fully informed decision regarding the value of a business and its prospects, the seller will need to reveal a substantial amount of confidential information about the company. Such information may include:
- Trade secrets
- Customer information
- Operational processes
A buyer wants to know all of the above information to understand any potential drawbacks of the transaction as well as the future potential of the business. However, if the transaction falls through for any reason, the seller wants to know that the other party does not make public or use against the company any confidential information.
In addition, if the public finds out that a potential sale of a business may take place, it can affect many aspects of the business. A company could lose loyalty from employees or customers, which could have lasting effects even if the sale never goes through.
To fully protect itself, a selling company may want to consider preparing a thorough NDA to be signed by the prospective buyer. A prospective buyer, in turn, wants to ensure that the terms of an NDA are reasonable and not overly restrictive. All parties should review and negotiate the terms of an NDA with counsel.
One of the most important aspects of a sale transaction is the process of going under the hood of the company to be purchased. A buyer needs to be able to understand the business in depth to make an informed decision and not have proverbial egg on its face once the deal closes. The process of due diligence will answer many questions that help to justify a particular price and build confidence in the transaction. A possible buyer should receive and carefully analyze the following information during the due diligence period:
- Customer base and goodwill of the business
- Reason for the sale of the business
- Employee base and retention
- Tax returns, financial statements and projections
- Leases or real estate holdings
- Commercial agreements, particularly with important accounts of the seller
- Assets and financial accounts
- Debts and other liabilities
- Any legal noncompliance issues
- Capitalization and outstanding securities of the seller
A business law attorney can help a seller provide all of the necessary information and avoid any misrepresentations of the state of the business. A buyer can also use an attorney’s assistance to receive and properly evaluate all necessary information.
Negotiating and Drafting the Purchase and Sale Agreement
Once a transaction is ready to go through, the parties will need to negotiate and draft a purchase and sale agreement. This is the legally binding contract that sets out all of the terms of the sale, which can include:
- Finalized price, payments terms, and purchase price adjustments at closing
- Structure of the sale (i.e., an asset or stock sale)
- Allocation of purchase price to specific assets
- Purchased assets and liabilities, and excluded assets and liabilities (in the case of an asset sale)
- Buyer’s and seller’s representations and warranties
- Indemnification agreements, escrow provisions, and other mechanisms to deal with possible breaches of representations and warranties
- Other rights and obligations post-closing
Needless to say, these complex contracts require skillful drafting by a legal professional to protect the rights of all parties.
An attorney at Braverman Law PC can also assist with additional matters involved in the purchase and sale of a closely held business, which include:
- Employment and/or non-compete agreements
- Real estate components of the sale transaction
- Business succession planning
We will help identify your achievable goals from the start of the transaction and see the sale through to realize those goals.
A New York Business Attorney Can Assist You
Buying or selling a closely held business is a major undertaking with much at stake. If you do not have the right assistance from a qualified legal professional who understands business law and contracts, you face serious risks. At Braverman Law PC, we have navigated major business transactions and negotiated favorable contracts for many clients. Before you engage the purchase or sale of a business in New York City, call (212) 206-8166 or contact us online today to discuss our legal services.