Editor: Jennie A. Clarke
Written and edited by experienced business law practitioners, the Purchase and Sale of a Business Deskbook provides in-depth analysis that will help guide your clients through the purchase and sale of a business transaction. Purchase and sale of a business, whether asset or equity transactions, involve complex considerations for buyers and sellers, and are generally done on short timetables. This Deskbook allows practitioners to identify the essential issues in the purchase or sale of a business, keeping sales transactions on track and assisting clients in getting the best outcomes. Each chapter in this Deskbook provides practical information, gleaned from the authors’ years of practice, alongside primary legal authority and suggestions for additional resources. Chapters also include sample language for use in transaction agreements and useful practice tips related to all aspects of the purchase and sale process—from preparing a business for sale to avoiding post-closing claims.
The Purchase and Sale of a Business Deskbook is jam-packed with more than 25 sample forms to help practitioners get a head start on drafting, allowing the transaction to be completed efficiently and effectively. This indispensable guide is a valuable resource for any business practitioner.
2023 UPDATE
The 2023 Update to the Purchase and Sale of a Business Deskbook includes updates to every chapter, including new sample forms, revised example language, and updated discussion and analysis for practitioners, as well as a brand-new chapter! NEW Chapter 12, Equity Purchase Agreements, covers the sale of a business for equity of stock and examines the differences between an equity purchase transaction and an asset purchase transaction. Chapter 2, Overview of the Purchase and Sale Process now includes two NEW appendices: Appendix A – Confidentiality Agreement; and Appendix B – Letter of Intent. As always, Deskbook authors have included valuable practice-based information, analysis of legal authority, and the sample language and forms that give business practitioners a head start in researching, drafting, and closing business sale transactions.
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CHAPTER 1
Introduction
Introduction; Conclusion
– Jennie A. Clarke
CHAPTER 2
Overview of the Purchase and Sale Process
Introduction; Preparing a Business for Sale; Buyers, Marketplace, Value, and Price; Financing the Transaction; Valuing the Seller’s Business; Structuring the Transaction; Confidentiality Agreements and Letters of Intent; Appendix A – Confidentiality Agreement; Appendix B – Letter of Intent
– Jonathan L.H. Nygren & Andrea T. Scheder
CHAPTER 3
Business Brokers for Small Business Transactions
Introduction; Business Broker – Licensing; Where Do Business Brokers Fit in the Market?; Fees; Sale Process: Investment Bankers Versus Business Brokers; Legal Facilitation of Transactions; Conclusion
– Jon R. Schindel
CHAPTER 4
Nuts and Bolts of the Purchase Agreement
Preface; Introduction; Key Differences Between an Asset Purchase Agreement and a Stock Purchase Agreement; Outline of a Purchase Agreement; Appendix A – Asset Purchase Agreement
– Rochelle L. Hauser & Sarvesh Desai
CHAPTER 5
Sample Earnout and Working Capital Provisions with Annotations
Introduction; Earnout Provisions; Form 5.2.1 – Sample Earnout Provision #1 – Conditional Deferred Purchase Price; Form 5.2.2 – Sample Earnout Provision #2 – EBITDA Target; Form 5.2.3 – Sample Earnout Provision #3 – Net Revenue Target; Form 5.2.4 – Sample Earnout Provision #4 – Net Revenue Target; Form 5.2.5 – Sample Earnout Provision #5 – EBITDA Target; Form 5.2.6 – Sample Earnout Provision #6 – Gross Revenue Target; Form 5.2.7 – Sample Earnout Provision #7 – Software Sales or Licensing Fee Target; Form 5.2.8 – Sample Earnout Provision #8 – Product Sales Target; Working Capital Purchase Price Adjustments; Form 5.3.1 – Sample Working Capital Provision #1; Form 5.3.2 – Sample Working Capital Provision #2; Form 5.3.3 – Sample Working Capital Provision #3; Form 5.3.4 – Sample Working Capital Provision #4; Form 5.3.5 – Sample Working Capital Provision #5 – Simple Provision; Form 5.3.6 – Sample Working Capital Provision #6 – Sample Calculation Worksheet
– Jennie A. Clarke
CHAPTER 6
Ancillary Documents to the Purchase Agreement in the Sale/Purchase of a Business
Introduction; Schedules and Exhibits; Outlying Documents; Document Lists and Examples; Appendix A – Bill of Sale, Assignment, and Assumption Agreement; Appendix B – Assignment of Contracts; Appendix C – Assignment of Proprietary Rights; Appendix D – Bring Down Certificate; Appendix E – Form of Authorizing Resolution; Appendix F – Secretary’s Certificate of Seller/Buyer; Appendix G – Closing Statement; Appendix H – UCC Financing Statement; Appendix I – UCC Financing Statement Amendment; Appendix J – Form of Termination Agreement; Appendix K – Form of Purchase Price Allocation Agreement; Appendix L – Form of Promissory Note; Appendix M – Form of Guaranty; Appendix N – Form of Security Agreement; Appendix O – Form of Independent Contractor Agreement; Appendix P – Form of Non-Competition Agreement; Appendix Q – Form of Escrow Agreement
– Scott M. Hagel
CHAPTER 7
Closing the Deal: Using a Closing Checklist
Introduction; Preparing a Closing Checklist; Signing Closing Documents; Appendix A – Sample Closing Checklist for Sale of Stock; Appendix B – Sample Closing Checklist for Sale of Assets
– Rochelle L. Hauser & Sarvesh Desai
CHAPTER 8
Employment Law Issues in the Sale of Business Transactions
Chapter Overview; A Buyer’s Successor Liability Considerations in Asset Deals; Buyer Strategies for Limiting Employment-Related Liabilities; Seller’s Strategies for Limiting Employment-Related Liabilities; WARN Act Issues for Sellers and Buyers; Personnel Tasks for Sellers and Buyers to Consider in a Sale Transaction
– Megan L. Anderson
CHAPTER 9
Common Post-Closing Claims and How to Avoid Them
Introduction; Representations and Warranties; Inadequate Disclosures; Restrictive Covenants; Responsibility for Post-Closing Claims; Remedies
– Michael H. Frasier
CHAPTER 10
Employee Benefit Issues in the Purchase and Sale of a Business
Introduction; Employee Benefit Plan Considerations in an Asset Purchase Transaction; Employee Benefit Plan Considerations in a Stock Purchase Transaction; Qualified Retirement Plans; Group Health Plans; COBRA Health Care Continuation Coverage; Executive Compensation and Nonqualified Deferred Compensation Plan Considerations; Controlled Group Issues; Other Employee Benefit Plan Considerations; Appendix A – Employee Benefits Due Diligence Checklist
– Jewelie Grape
CHAPTER 11
Tax Considerations: Asset Sale Versus Equity Sale
Chapter Overview; General Concepts; Transaction Structure – Tax Considerations; Taxable Stock/Equity Purchase and Sale; Asset Purchases and Sales; Section 338 – Certain Stock Purchases Treated as Asset Acquisitions; Application of Section 1060; Conclusion
– Scott L. Emery
Table of Authorities
Subject Index
More than 25 Sample Forms Included:
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