Heads you win
The sale or purchase of a business can be a daunting process, especially at the outset, but by considering the steps below, you will be in a stronger position when negotiating the key transaction documents.
At the beginning of the negotiations, and before disclosing any confidential information, you should enter into a confidentiality agreement. You will be discussing commercially sensitive information – financial information, key customer contracts, employee records and the like. It is therefore crucial that this information remains confidential, especially if the buyer is a competitor and could use the information to its advantage.
Heads of Terms
Capture the key terms of the transaction in writing. Don’t go into too much detail – that will come later. These heads are not legally binding but they will confirm the intent and set out the framework for the transaction.
Heads of terms typically include:
- the price agreed by the parties, how this will be paid and when;
- the timetable for the sale; and
- details of any conditions and the due diligence required, including legal, accounting and commercial affairs.
The buyer will be investing considerable time and money in undertaking the due diligence exercise, so may insist on a period of exclusivity. This prohibits the seller from negotiating a sale with other potential buyers for a fixed period of time. Exclusivity provisions are particularly useful when a transaction involves complex due diligence and lengthy negotiations.
We can, of course, guide you through every step of the process.