Selling a business is often an emotionally taxing experience as an owner. You have to balance handling all the administrative matters correctly with preparing for life away from your business. As a result, it is really easy to overlook certain parts of the process, which unfortunately can create headaches down the track. This is particularly relevant to the legal aspect of selling your business. To help you avoid any complications, we’ve come up with a list of legal factors for you to consider before signing off on a sale
Terms of Sale
When presenting your business for sale to prospective buyers, it’s important to be very clear and specific about what exactly you want to sell. The goodwill of your business can be spread throughout your tangible and intangible assets. This can range from land and equipment to your business name and customer data. You will want to establish the elements of your business that you wish to sell or retain, prior to entering into a Business Sale Agreement.
Business Name Transfer
If you do agree for the new owners to take on your business name as part of the sale, you will be responsible for the transfer process. ASIC provides a simple to use service to transfer a business name to a new owner. This process is done completely online and is accessible here. It is important you are aware of this obligation prior to agreeing for your business name to be sold.
When selling your business, the future of your current employees will be one of the more pressing matters to deal with. This is something you don't want to neglect, as there can be legal consequences if you do not act appropriately. During the process of a business sale, there are essentially two outcomes that can occur with regards to your employees
The new owners may want to keep your existing employees when they take over the business. In this instance, it is wise to provide as much information to the new owners in order to avoid any confusion or complication. As a starting point, you should transfer your employee’s most recent records over to their new employers. In addition, you will want to make them aware of any existing obligations you have with your employees.
These could include contractual, financial, legal or leave related agreements. Despite the fact that your employees will still have work, you will need to provide notice of their employment ending. Inform them that they will have to enter into a new contract with the new owners, which comes into effect when the business is officially sold.
Alternatively, if the new owners have no intention of employing your staff then you should notify them as early as possible. This can be a delicate situation to deal with, and as a result, honesty and transparency during this process is vital. Being clear with your employees about their future will not only benefit you as the employer but will also give them the best opportunity to find other employment. It’s best practice to refer to and follow the requirements of the Fair Work Act 2009.
Leases and Licenses
During the negotiation process with a potential new owner, it’s vital to identify any existing leases, licenses or permits that concern the operation of your business. An existing lease may require a transfer to be arranged with the vendor to the buyer. With regards to licences, councils tend to be the authority that will manage the transfer process when a business is sold. Liquor and food licences are examples of this. Failing to disclose any of these factors, can lead to legal consequences, especially if they are noticed after a sale has been completed.
The key theme to remember throughout the entire process of selling your business is transparency. Disclosing relevant information about your business to a prospective buyer will ensure you don’t encounter any complications after the sale. If you are uncertain about any aspects of the selling process, the advice of a business sale lawyer be of use.
For more information, contact Christopher Tsiknas at Lawpath