Thinking of buying a business? For any arms’ length transaction, it is critical that buyers take certain steps during the purchase process (also referred to as the M&A process) to protect their legal and financial interests. Assuming the buyer has already identified a viable target company to purchase, we summarize here the essential next steps in this M&A process.
Hiring a Valuation Expert and Business Attorney
While each situation varies, often a good first step in buying a business involves hiring professionals to assist the buyer through the purchase process. A valuation expert will typically aid the buyer in assessing whether the target company is a sound investment and determining a reasonable purchase price to begin negotiations with the owner of the target company.
Similarly, a knowledgeable business attorney can work together with the buyer and valuation expert to determine the best approach for opening negotiations with the target company in order to maximize chances to obtain favorable terms for the buyer and, ultimately, a successful outcome. A business attorney will also advise the buyer on legal issues as they may arise during the M&A process and prevent the buyer from falling prey to common pitfalls.
Executing a Non-Disclosure Agreement
Prior to the initiation of negotiations with the target company, it is often wise for the buyer to require execution of a Non-Disclosure Agreement with the seller. The NDA typically prevents either party from using sensitive information about the other, which may be disclosed during the M&A process, to its advantage. This step is especially important if the buyer is a company or individual which owns or possesses confidential information that could harm it if disclosed publically and which may be disclosed during the course of the transaction.
An NDA should clearly describe what type of information is covered by the NDA, how the parties may share and utilize that information through the course of their negotiations, as well as the extent to which their information might be shared with third parties such as valuation experts, accountants, law firms and others who may be involved in the M&A process and beyond.
Should the parties reach a final agreement and execute a purchase or sales agreement, that document will usually include non-disclosure provisions which supersede this initial agreement. However, if negotiations break down and the parties never execute a purchase or sales agreement, the buyer’s confidential information will remain protected by the NDA and provide recourse to the buyer should the seller violate its material terms.
Signing the Term Sheet or Letter of Intent
A term sheet or letter of intent are two types of documents which serve the same central function: they summarize the primary terms of the proposed deal. Depending on a variety of factors, these documents may be quite brief or provide extensive detail concerning the parties’ intentions; they may also be binding or non-binding in nature, or a combination of both. The content of these documents will also vary depending on the type of purchase involved—whether the transaction involves a purchase of the entire company, including its liabilities, or simply its assets.
Learn more about letters of intent from our previous articles: “Letter of Intent: Is it Enforceable?” and “Using a Letter of Intent When Purchasing a Business”.
Performing Due Diligence
The importance of performing appropriate due diligence during the M&A process cannot be overstated—it is the buyers best opportunity to uncover any information that may have an impact on the value of the target company before taking ownership of the company or its assets. During this phase of the deal, the buyer and its accountants are provided access to the seller’s financial statements, employment and corporate records, as well as other information or documentation which may affect the value or viability of the target company. The buyer may also involve their business attorney to engage in independent due diligence tasks, such as performing a UCC search, reviewing company records held by the appropriate secretary of state’s office, securities filings, court records and other available documentation which relates to the target company.
During the due diligence process, the buyer’s business attorney will review records for the purpose of advising the buyer on a variety of legal issues, including an assessment of the potential risk of litigation. At the same time, the valuation expert will typically review the results of the financial record review for the purpose of advising the buyer regarding the continuing viability of the company from a financial perspective as well as fine-tuning the purchase price and other terms of the sale. These professionals will provide the buyer with an opinion, if requested, as to whether it makes sense to proceed with the M&A process from a legal and financial perspective, respectively.
Drafting and Executing the Purchase Agreement
Assuming the buyer has committed to proceed with the M&A process, the parties will negotiate the final terms of the purchase, which will be consummated in a purchase or sales agreement. In addition to a complete description of the assets and liabilities being purchased, the purchase or sales agreement will generally include extensive and concise detail regarding the parties’ rights and responsibilities in relation to the transaction, any warranties by the parties, conditions to closing, the consideration being given for the company or its assets, as well as non-disclosure and non-compete provisions.
The closing represents a successful conclusion to the entire M&A process. It is the date and time on which the terms set out in the purchase or sales agreement are finalized and ownership of the company/assets passes to the buyer. In some cases, all of the relevant documents will have been executed prior to closing and the consideration promised by the buyer is released to the seller. Traditionally, however, the closing of a business purchase is very similar to the purchase of real estate in that the parties will meet, along with their respective advisors, and execute the final documents as required by the purchase agreement. Upon execution, certain interests may be perfected through recordation with an appropriate government entity or agency, but the transaction will have concluded and ownership passed to the buyer.
© 2017 Gehres Law Library This article is for general information only. The information presented should not be construed to constitute formal legal advice nor the formation of a lawyer/client relationship.