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Preparing to sell the business

3-2-2015

Based on years of experience, Jonathan Silverman outlines the crucial aspects of preparing clients for the sale of their business.

More often than not, clients only approach their lawyers once a deal has been struck, yet it can be hugely beneficial to a client if the lawyer has earlier knowledge of a proposed disposal because there is much that we can do to help ensure a successful outcome.

I always keep in mind when acting for commercial clients that they might be contemplating a possible exit from the business at some point in the future, especially if the client is reaching retirement age or is a ‘serial entrepreneur’, who will likely have a strategy in mind.

From a practitioner’s perspective, the quicker one can establish whether or not a sale is a short or medium-term goal, the easier it is to engage in the process of helping the client prepare for that sale.

Thinking ahead

Forward planning is vital in developing an understanding of the business as it is now, identifying opportunities for future exits and maximising the available options. While in the past it may have been expected that a lawyer who had acted for a business would be expected to act on the sale, today we are fully aware that the client’s accountants and business advisers may well make a recommendation as to a suitable lawyer to handle a business transaction. Therefore, it is vital that the client knows that his legal adviser is both commercially astute and ‘actively listening’.

Maybe we know a prospective buyer?

The whole process of a business sale is best discussed well ahead of any buyer coming to the fore so that the client will understand the process. Clients are more likely to appreciate our level of expertise and the reason for the level of professional cost which will be incurred in negotiating an agreement that aims to limit their exposure on warranties and indemnities.

Even though a possible sale may be several years away, it is wise to start considering who suitable prospective buyers might be. In many cases, sale to a trade competitor or someone in an allied field might well be appropriate and making the right contacts early enough proves worthwhile.

It is important to clarify the contractual relationships with suppliers and customers. More often than not, much will have been left to trust and goodwill; an approach that might work well for the current business but one that is less likely to impress a prospective buyer or their advisers carrying out the usual diligence process.

Also, you should start to build the ‘contract Bible’ at an early date. It takes time but is hugely beneficial in avoiding those last-minute rushes to find that photocopier lease or fire alarm maintenance contract. Trivial though that may sound, crucial time can be lost in negotiations just when the client is looking for swift progress.

Also, check that copies of all current contracts of employment and service agreements are in place. Go through them ensuring that they are thoroughly up to date and contain appropriate non-compete covenants. There is nothing worse than finding a buyer only to be faced with the management threatening to join a competitor.

Where the businesses operates from premises which are either owned by the trading entity, or by the proprietor personally, or through a pension fund, discuss whether it is appropriate to include the property in the business sale.

Importantly, do not overlook intellectual property protection. Check that any brands have been protected as registered trademarks and where the business is reliant upon software, check the appropriate assignments have been taken from programmers or designers.

Finally, discuss the pros and cons of selling for cash or taking shares, or find out if an element of consideration outstanding after completion, maybe with some element of the price dependent upon future profitability could be factored in. Also, warn the client that deferred consideration can simply lead to a tax charge and highlight what would happen if the purchasing company were to fail, especially if the appropriate safeguards were not included in the contract.

In summary, your lawyer is here to recognise your objectives and help protect you when you sail into uncharted waters. For advice on any aspect of preparing your business for sale, please contact Jonathan Silverman on jtrs@silvermansherliker.co.uk or +44 (0)20 7749 2700.

The original version of Jonathan’s article appeared in Solicitors Journal www.solicitorsjournal.com

SILVERMAN SHERLIKER SOLICITORS LLP
Jonathan Silverman
7 Bath Place
EC2A 3DR London
T: + 44 (0)20 7749 2700