Top Legal Tips When Selling Your Business

Robert Dickson of Mason Hayes & Curran LLP details an owner’s top legal tips when selling your business.

1. Consider whether to run an auction process, under which a single buyer would be selected, or to engage a single buyer in a bilateral sale. An auction process can be more challenging and complicated to manage, but the competitive tension can yield a higher price for the business.

2. Consider the key deal issues and negotiating points in advance of the transaction with your advisers. Generate a list of these points, noting the optimal position you would like included in the documents in respect of each point. The list should also include any compromise position you would be willing to accept in respect of the relevant point. For the purposes of context and perspective, it is important to revisit this list later in the transaction negotiation, when a small number of deal points remain to be resolved.

3. Be aware of the key deal documents you will need to negotiate. Ensure that your advisers walk you through the core intention and key provisions of each document, even before drafts are prepared.

4. Consider and map out the deal timetable and keep momentum and discipline in the process. Consider who is in charge of driving the transaction forward and ensuring all parties are held accountable for delivering actions and documents within agreed timelines.

5. Understand your buyer. What will their key concerns or drivers be? What further board or investment committee approval do they require? Who are their key decision makers?

6. Prepare a data room in advance of the process. Trying to gather this together and organize it after due diligence request lists are circulated by the buyer can take a long time, and can stall momentum in deals.

7. Consider tax structuring early, i.e. whether the proposed structure is efficient from a tax perspective or whether any alternative structure might be optimal. This is crucial to avoid delays during the process or wasted costs if the structure needs to change later in the deal.

8. Make sure there is a term sheet. The key terms of the transaction, timelines, and structure should be set out in this non-binding document.

9. Consider carefully who within the business will be engaged in the day-today requirements of the sale, such as addressing due diligence questions. It is crucial that the smooth running of the business is not compromised by the sale process.

10. The parties negotiating the deal and their core advisers will move quickly if so instructed and agreed. They will, subject to agreeing the commercial terms and finalizing due diligence, generally be in control of the deal timetable. However, if third-party consents or deliverables are required this can sometimes delay the transaction exponentially. In some instances, such as property-related issues, early planning and engagement can avoid these delays.

11. Ensure regular and organized lines of communication are open between the counterparties and advisers on the deal. A regular call, eg weekly, is usually very helpful to enable the parties to stay on top of all workstreams.

12. Ensure the key decision maker on behalf of the sellers in the transaction is available to give prompt feedback and make decisions when requested by your advisers. This is important to ensure that any delays in the process are not caused by the sellers.