Legal Representation in a Sale of Business Transaction
What to expect from your attorney
- Trust and communication
- Knowledge and experience
- Appreciation of urgency and timetable of deal
- Skill in the art of “creative compromise”
ATTORNEY’S ROLE IN SELLING YOUR COMPANY
- Assistance in deal structuring
- Negotiating
- Documenting; and
- Closing the deal.
STAGES IN THE LEGAL PROCESS
- Letter of Intent
- The Definitive Purchase Agreement
- Satisfaction of Conditions Precedent to Closing
- Closing
THE LETTER OF INTENT
- What is it
- Why is it important to Seller
THE DEFINITIVE PURCHASE AGREEMENT
- Which attorney drafts it and why
- Representation and warranties, covenants, conditions and indemnification: The definitive agreement as a risk-shifting device.
HOW THE ATTORNEY CAN ASSIST IN KEEPING SOME OF THE RISKS ON THE BUYER
- Assistance with disclosure schedules
- Qualifications and limitations on representations and warranties
- Limitations on buyer’s come-back rights: baskets, ceilings and cut-offs on claims
- Blunting requests for set-offs and escrows
THE SELLER’S REVENGE: SECURITY FOR THE DEFERRED PURCHASE PRICE
- Cash is king
- Security devices abound
EXAMPLES OF CONDITIONS TO CLOSING
- Termination of unwanted distributors
- Consent of third parties to contracts
- Employment agreements with key employees
- Shareholder consents
- Compliance with environmental laws (ISRA)
- Pension issues
- Legal opinions
THE CLOSING
- The best closing is a short closing
- Postscript
