Sale of a Business - Legal Risk Factors and Due diligence


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Sale of a Business - Legal Risk Factors and Due diligence

  1. 1. SALE OF A BUSINESS: RISK ISSUES“Risk Factors and Due Diligence”Presented by:Tom MeagherDirector – Commercial Law© Murfett Legal 2013
  2. 2. Disclaimer• The information presented in this seminar is intended only as a guide, as tothe topic and the matters discussed.• This seminar is not legal advice and must not be relied on as such.• If you have a matter which relates to this seminar or you require legaladvice, careful review and analysis of your matter’s particular facts,information and documents is required before proper legal advice can begiven or applied to your matter.© Murfett Legal 2013
  3. 3. © Murfett Legal 2013Tom Meagher | Director | Commercial LawTom has over 20 years’ business experience; includingworking for major national and local law firms, owning andmanaging an IT businesses, and being a director and in-house counsel for a public company.Tom has excellent communication, technology andpersonal skills with a proven ability to develop businessrelationships and maintain clients.Tom’s clients include a broad range of local and nationalbusinesses and organisations (including not-for-profitentities), accounting firms, financial brokers and advisers,franchisors and high net-wealth families.Tom is also a regular presenter of seminars to various client groups andprofessional bodies on a wide range of commercial law topics.Based on Tom’s training and business experience, he has a uniqueunderstanding of his clients’ objectives and legal needs. Tom is therefore able toprovide a very client-focused and commercial approach to all your dealings.
  4. 4. Risk Factors and Due Diligence(Buyer Perspective)1. Ensuring the contract permits for an appropriately-scoped andcomprehensive due diligence• Before Contracting– The Buyer is buying business and not shares etc.– Assuming correct Buyer entity (note: “related parties”with OSR),– FIRB / Foreign Buyer– Seller’s authorised party to contract– Type and size of business being bought– Consider whether a confidentiality deed may be required (uni- or bilateral)– Indicative financial approval – strongly consider incorporating banks soughtcovenants© Murfett Legal 2013
  5. 5. – What is the ‘purchase price’ = Goodwill (e.g. business name, trademarks, clients,P&E, Stock & licences. Also, will it be:o cash; oro say, for shares (e.g. an ‘assets for equity’ deal)– Does the Buyer actually have enough cash to by the business? (It will be a lotmore than their just paying the purchase price (e.g. transfer duty, finance fees,bank guarantees for premises, advisor fees, settlement/transfer costs, workingcapital etc)– Full purchase of business or partial business ‘asset’ purchase, and therefore nota going concern.– Purchase Price + SAV?– Outright purchase price payment at settlement or ‘earn-out payments byinstalments (e.g. 25% - 75% of the balance of the purchase price paid 6mths to 2years) after Settlement (note: this is vendor finance, therefore consider PPSRand security for payment).– Ceiling and floor , with Seller ‘blue sky’ or replaced ‘lost clients’ , clauses.© Murfett Legal 20131. Ensuring the contract permits for an appropriately-scoped andcomprehensive due diligence (cont.)
  6. 6. © Murfett Legal 20131. Ensuring the contract permits for an appropriately-scoped andcomprehensive due diligence (cont.)• Conditions Precedent– Identify the seller(s)? - multi-party Business Purchase agreements.– Conditional or ‘phased’ deposits(s). Interest on deposit– Ability to adjust ‘offered’ purchase price (and to ‘contractually retain’ Seller) oncepreliminary due diligence completed. Also with loss of any key franchise, licenseor distribution agreements?– Consider a business valuation.– Review of:o Past 2-3 years $financial statements, P&E schedules, sale figures, client/customerlists etc.o Key contracts (e.g. exclusive supplier/distributor or agency agreements)
  7. 7. © Murfett Legal 20131. Ensuring the contract permits for an appropriately-scoped andcomprehensive due diligence (cont.)o Lease of premises and determine: if any re-fit/make good permitted use relocation and demolition of premises provisions options to renew/acquire (register caveat or lease) exists ‘site-based goodwill’ plus check for ‘fixtures’ or lessor’s chattels being sold.o Employment and subcontractors agreements - Key employee clause and alsoare they under the correct arrangements/Awards etc. Also are there any‘excess’/or ‘problems children’ employees that should be made redundant by theSeller pre-settlement).– PPSA’s registration effects on equipment– Consider Purchase Price ‘retention sum’ linked to earn-out (particularly forservices based business. This is rather than the Buyer having to have recourseto possible warranty (etc.) claims against the Seller.– Third party approvals, waivers and consents (e.g. consent assignment of lease,transfer of license, 1st right of refusal etc.)
  8. 8. – Physical inspection of business, premises and asset. Consider asset ‘cherrypicking’ clause. Photos of premises (state) and equipment; also PPSA serialnumbered goods (e.g. vehicles, boats, aircraft).– Stock-take clause– Lease (note: release of Seller’s deposit and bank guarantees).– Employment agreements (payroll, payslips, start dates etc).– Transmission of business and ‘amortisation factor’ (e.g. 60%-70%) for accruedtransferring employees’ liabilities.– Relevant license or authorities that may apply to the business (e.g. pharmacy,childcare, food sales).– Seller to perfect or ratify deficient/non-existent ‘key’ business arrangements (trustT&Cs, ‘off-take’/key contributors, contracts, outstanding leases, PPSRregistrations and key contracts).© Murfett Legal 20131. Ensuring the contract permits for an appropriately-scopedand comprehensive due diligence (continued)
  9. 9. 2. Documents to be reviewed and warranties and guarantees to be sought• Seller Warranties and Covenants– Warranties and representations:o Seller or Agent prior representations and indemnitieso Seller’s covenanters or guarantors– Indemnities and release– Restraints of Trade and Protective Covenants (of employees)– Business/Product/Service Names vs. Trademarks - copyright– Privacy Act compliance (e.g. sale of private information, express prior consent)– Confidentiality and ‘No Publicity and/or Disparaging Remarks’ provisions© Murfett Legal 2013
  10. 10. 3. Understanding the various statutory business registers relevant to thesale of business– ASIC (– Business Name Register (– Australian Business Register (– PPS Register (– IP Australia (– Local council– Any statutory permits, licences etc (note: BLIS –– Also statutory’ ‘gate keepers e.g. Pharmacy Council, DGRL© Murfett Legal 2013
  11. 11. 4. Who or what will be the “lowest common denominator“ in achieving asuccessful due diligence and settlement?– Has the Seller retained a suitably competent and experienced BusinessSettlement agent or Commercial Lawyer?o The Buyer should not have to ‘subside’ the Seller, in the Seller’s required effectinga smooth sale and settlement to them of the business they’re paying good moneyfor!– Limited retainer and ‘scope creep’.– Third Parties: Lessors, Financiers, Franchisors/Licensors, Key Employees,Secured Parties and Statutory Approvals.– Business Brokers: how to control them/ keep them happy.– Settlement dates: Fixed or ‘incentivised’ (e.g. “upon the last the last of theconditions precedent being met (or waived) plus 2-5 business days” and“acceleration of clause”)?© Murfett Legal 2013
  12. 12. 5. Mitigating the risk factors, both pre-and post-settlement• Pre-settlement– Ensuring proper accounting and legal advice obtained re: that particularbusiness and the proposed transactions– Will all the stakeholders be available/ accessible at settlement? (e.g. you don’twant the lessor to be on holidays and can’t get an assignment of the lease)– Maintaining of advertising.– Maintenance and insurance of business until settlement (suggest don’t let thebusiness’ stock levels be run-down or run-up)– Ensure that bank conditions are met and understanding the difference between:o “unconditional finance approval”; ando “funds available for settlement”.– Premises keys, codes, domain names, software licenses and passwords etc– Full discharge on PPSR or signed Deed of Release from the Secured Party (NB:there are not any ASIC 312 forms anymore!)– Draft settlement statement–© Murfett Legal 2013
  13. 13. 5. Mitigating the risk factors, both pre-and post-settlement (cont.)• Post-settlement– Seller’s assistance of Buyer with business and/or introductions toclients/customers, key suppliers etc.– Seller’s handover / working in business– Further assurances provisions.– Seller transfer duty lodgement obligations (and concessional transfer duty toOSR)© Murfett Legal 2013
  14. 14. 6. Concessional rate of transfer duty – Section 79 – 86 of the Duties Act 2008• A dutiable value of the dutiable property which does not exceed $200,000 may beassessed at the concessional rate of duty.• The concessional rate of transfer duty is as follows:$ 0 - $100,000 $1.50 Per $100 or part thereof$100,001 - $200,000 $1,500 + $4.39 Per $100 or part thereof above $100,000• An application for an assessment at the concessional rate of transfer duty shouldaccompany the relevant transaction record when it is lodged.• The appropriate application form is available from the Office of State Revenuewebsite at© Murfett Legal 2013
  15. 15. 7. Section 280(2)(b) of the Duties Act• Under section 280 (2)(b) of the Duties Act 2008, after the expiry of the timeprovided under section 23 within which an instrument is to be lodged for dutyendorsement:• a person who is not a party to the dutiable transaction effected by theinstrument, acts under the instrument,• that person must, as soon as practicable, lodge the instrument or give noticeof the instrument to the Commissioner.• Penalty is a fine of $20,000.• Section 23 - “within 2 months after the day on which liability for duty on thetransaction arises”.
  16. 16. © Murfett Legal 2013THANK