Selling a business involves a lot of paperwork and a good contract. A business sale agreement is a legal document that describes and records the price and other details when a business owner sells the business. It is the final step to transfer ownership after negotiations for the transaction have been completed. It may be necessary for the new owner to demonstrate ownership of the business and register the business with state and local authorities.
Consider working with a financial advisor as you plan the sale or purchase of a business.
Every business sale agreement differs in the details. But there are standard parts that almost any agreement will contain.
The names and locations of the buyer and seller will be clearly stated in the first paragraph or two of the contract. The name and location of the business being sold also need to be expressed in unmistakable terms.
The agreement will detail the specific assets being transferred. Physical assets may include real estate, vehicles, inventory, furnishings, fixtures, machinery and equipment. Financial assets such as accounts receivable and cash might also be transferred. Intangible assets could be the business name, goodwill and customer lists. If any assets are not going to be sold, this will also be spelled out.
If the buyer is assuming any liabilities by purchasing the business, these will be listed here. Liabilities might include taxes owed to local, state and federal governments, accounts payable and outstanding loans. A statement that the buyer is not assuming any unlisted liabilities is also often included here.
The sale price being paid by the buyer clearly is a key part of this section. Also included here will be the closing date of the transaction. Whether the price will be paid in a lump sum or installments will also be specified. If the buyer is putting up security or collateral, that will be spelled out here.
For tax purposes, the price section will also tell how the purchase amount will be allocated among categories as defined by the Internal Revenue Service. To only have to pay long-term capital gains taxes sellers typically prefer a stock or equity sale because they can treat the transaction as the sale of a capital and, thus, pay the long-term capital gains rate if a profit is made on the sale.
In this section both parties will reveal any potential impediments to the deal. Examples might include outstanding debts, pending lawsuits, obligations and fines.
Various other agreements are often part of the business sale document. For instance, both parties may sign non-disclosure agreements. The seller may agree not to compete with the new owner for a period of time. Or the seller may agree to remain as an employee of the business working with the new owner for a set period.
This section will describe any acts or conditions that would constitute a default or breach of the terms of the contract. An example of such an act could be the buyer failing to make a scheduled payment.
Should a dispute arise, it will detail how it will be dealt with. For instance, it will say whether disputes will be resolved by arbitration or litigation. It may also name the legal jurisdiction where any lawsuits will be heard.
Each party will provide a way for the other to notify them in case any matters need to be dealt with later. A standard approach is to provide an address for in-person notification or for delivering a certified letter.
Signatures by the buyer and seller or their representatives are necessary to finalize the agreement and make it binding. The signatures also will be dated. In addition, business sale agreements are often witnessed and notarized by a notary public.
A business sale agreement is often accompanied by numerous other supporting documents. These may include a bill of sale, copies of leases, customer and supplier contracts. Intellectual property such as recipes, operating manuals, trademarks, copyrights and patents could be attached as well.
A business sale agreement represents the culmination of what may have been a long and difficult negotiation. It describes the consensus reached on the price and other details of the transaction. It helps ensure each party will do what was promised and get what they need out of the deal. And it provides a framework for resolving any differences that may crop up later. Be sure to accurately calculate the taxes due in the transaction.
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Mark HenricksMark Henricks has reported on personal finance, investing, retirement, entrepreneurship and other topics for more than 30 years. His freelance byline has appeared on CNBC.com and in The Wall Street Journal, The New York Times, The Washington Post, Kiplinger’s Personal Finance and other leading publications. Mark has written books including, “Not Just A Living: The Complete Guide to Creating a Business That Gives You A Life.” His favorite reporting is the kind that helps ordinary people increase their personal wealth and life satisfaction. A graduate of the University of Texas journalism program, he lives in Austin, Texas. In his spare time he enjoys reading, volunteering, performing in an acoustic music duo, whitewater kayaking, wilderness backpacking and competing in triathlons.
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