Business Sales: Legal Issues & Risks
213N21: Gain a thorough understanding of the many moving parts that will make or break a business sale. Hone your negotiation skills. Avoid unnecessary exposure related to IP, privacy & data risks. Examine critical employment law issues, including transferring employees & restraints of trade. Catch up on the latest franchising law reforms. Analyse key financial risks, including essential valuation issues, distressed transactions in the current market, & the tax consequences.
Description
Attend the full day and earn 7 CPD units including:
5 units in Substantive Law
2 units in Professional Skills
This program is applicable to practitioners from all States & Territories
Session 1
Significant Legal Issues in Business Sales
Chair: Jason Sprague, Partner, Bartier Perry
Professional Skills
9.00am to 10.00am Negotiation Skills for Lawyers to Ensure the Deal Happens on the Right Terms
- Different approaches and philosophies to negotiation
- Points to focus on in negotiations
- What we have seen work and not work
- Rules of thumb for more effective negotiation
Presented by Malika Chandrasegaran, Partner, Herbert Smith Freehills
10.00am to 11.00am IP, Privacy & Data Protection in Business Sales
- The fundamentals of IP due diligence
- Customer lists, trade secrets and personal information: IP and privacy considerations
- Trans-border IP and privacy issues
- Deal structuring for best securing, protecting and exploiting IP
- Effective drafting for IP-rich business acquisitions
Presented by John Gray, Partner Hall & Wilcox
11.00am to 11.15am Morning Tea
11.15am to 12.15pm Employment Law Considerations in the Purchase of a Business
Employment law issues should be considered very carefully by the seller and purchaser alike as they can affect both the value of a business that has been purchased and the seller’s ability to work in a different business after the sale. You will examine:
- Transferring employees from a vendor to a purchaser’s business
- Key steps in the process
- Choosing which employees to transfer over and what happens to those left behind?
- What happens if an employee doesn’t want to work for a purchaser?
- Redundancy: what the vendor and purchaser need to know
- Restraints of trade
- Practical considerations and case studies in drafting and enforcing restraints of trade
- What will be enforceable? What’s excessive?
- Interaction between restraints in the sale agreement and employment contracts
Presented by Anton Duc, Barrister, State Chambers
12.15pm to 1.15pm Franchises: Key Considerations when Buying and Selling
- New franchising law reforms
- Specifics of a franchise agreement: key things to look out for
- Considering licenses, leases and permits
- Understanding the franchisee/franchisor relationship
- Common franchising disputes in sale and purchase situations
Presented by Racha Abboud, Principal Lawyer, Macpherson Kelley
Session 2
Legal Risks & Strategies Involving Financial Issues in Business Sales
Chair: Darren Pereira, Partner, Holding Redlich
Professional Skills
2.00pm to 2.45pm Valuation of a Business: The Key Processes & Issues
- What is a business worth?
- The valuation process and valuation approaches
- Total intangibles, personal and residual goodwill
- Capitalisation of future maintainable earnings
- Issues in valuations
Presented by Lauren Cusack, Client Director, ESV – Accounting and Business Advisors; CA Business Valuation Specialist
2.45pm to 3.30pm Distressed Transactions: What you Need to Know if You are Transacting with a Distressed Seller
- Current trends in the market and impacts of COVID-19
- Opportunities & challenges with distressed M&As
- Due diligence: focusing on the key issues when time is limited
- Typical structure of deal: unconditional, limited warranties
- Navigating the risk that the transaction could be unwound
- Impact of corporate insolvency reforms
- Waiting to purchase through a formal insolvency process
Presented by Kristy Dixon, Partner and Giselle Finnane, Partner, Marque Lawyers
3.30pm to 3.45pm Afternoon Tea
3.45pm to 4.30pm Tax Implications for Sale of Business
- Key tax issues associated with the sale of a business: CGT/income tax, GST and Stamp Duty
- Sale of shares vs sale of business
- Apportionment of purchase price / purchase price adjustments
Presented by Sanjay Wavde, Partner and Elke Bremner, Senior Associate, Ashurst
4.30pm to 5.15pm Aborted Transactions: Strategies for Sale Attempt #2 and Preparing a Business for Sale
- Forecasts and financials: What are buyers looking for today?
- Alternative deal structures: asset or share sale, upfront payment or deferred / earn-out, transitional arrangements
- Multiple bidders: how to create competitive tension
- Housekeeping tips: getting a business sale-ready in a tough market
Presented by William Kontaxis, Special Counsel, Holding Redlich
Presenters
Jason Sprague
Jason is a commercial, corporate and intellectual property lawyer with more than 20 years' experience in mergers and acquisitions; business structuring; intellectual property commercialisation and protection; information technology development, licensing and procurement; and a range of cross-border transactions. Jason has a wealth of experience in advising SME businesses, large multinational organisations and government agencies. He has worked with Australian and international companies across a range of industries including manufacturing, biotechnology, retail, FMCG, IT, fashion, transport, professional services, and construction and infrastructure.
Malika Chandrasegaran
Malika combines her strong technical legal knowledge with a practical commercial approach. She specialises in public and private mergers and acquisitions (including cross border transactions), corporate restructures, foreign investment, joint ventures and other commercial transactions. She has experience across a wide range of industries, including technology, media and consumer products. Malika is also the co-author of a detailed review of Australia’s foreign investment regime in “Towns Under Siege” (a book on Australian takeovers). In addition, she is the co-author of two chapters in “Before You Tie The Knot” (a book on joint ventures).
John Gray
John is a senior corporate and commercial lawyer who has specialised in technology and intellectual property law for over 25 years. He is a partner in the Corporate and Commercial team at Hall & Wilcox. John advises clients on commercial transactions and legal disputes in the fields of IT, telecommunications and media. His expertise covers all the legal issues associated with the use of technology in business and government, including licensing, privacy and data protection, copyright, branding and e-payments. Known for his hands-on and pragmatic approach, and his ability to find solutions to legal and commercial issues,
Anton Duc
Anton was called to the bar in April 2015. He has a broad practice with a particular focus in employment and industrial relations law. Since being called to the bar, Anton has represented a wide variety of clients from corporations to individuals He has appeared in the Federal Court, Supreme Court of NSW, District Court, Local Court and State and Federal Tribunals, such as the Fair Work Commission and NSW Industrial Relations Commission. Given his experience over more than a decade, Anton is able to approach and conduct his matters with a strategic focus and having regard to the legal and commercial interests and objectives of the client.
Racha Abboud
Racha brings acumen to commercial legal advice and as a specialist franchise lawyer works closely with a wide range of franchising clients both within Australia and internationally. Combining professionalism with a down-to-earth approach, no matter is too small or too much trouble. She takes the time to learn every aspect of her clients’ businesses so she can deliver practical and commercial solutions. Racha works with clients who operate in various industries, including food and retail, fitness, pharmacy, automotive and real estate. She delivers tailored and easy to understand advice. She enjoys the way franchising crosses everything in the commercial law space, offering different scale and different perspectives, depending on the client.
Darren Pereira
Darren is a corporate partner with 20 years’ experience (including 5 years in London) in all aspects of a range of corporate transactions. Darren has particular expertise in cross-border transactions having advised foreign clients on all aspects of corporate finance transactions in Australia, including fundraising, takeovers, financing and securitisation. Darren is listed in the Best Lawyers in Australia 2021 edition for Corporate Law.
Lauren Cusack
Lauren is a business valuation and forensic accounting specialist who advises clients on commercial transactions and litigation matters. She uses her financial accounting, business modelling and business valuation expertise to deliver high-quality solutions to individuals, management, companies and legal advisors. Lauren has been involved in valuing small to medium businesses; private companies, partnerships and trusts; options and other employee entitlements; and intangible assets such as goodwill. Her work has focused on several areas including tax legislation compliance, reporting requirements under Australian International Financial Reporting Standards (AIFRS), litigation support, shareholder disputes, restructures, and the sale and purchase of businesses.
Kristy Dixon
Kristy Dixon is a partner and head of the Corporate/M&A team at Marque Lawyers, which was founded in 2008 with the modest ambition of completely changing the way law is practised. Kristy gained high level experience at major law firms before joining Marque and she hasn't looked at a time sheet since. She combines tons of experience running every kind of corporate deal imaginable, with a keen interest in emerging corporate structures.
Giselle Finnane
Giselle Finnane is a partner in the constantly expanding universe of Marque Lawyers' Corporate team. Giselle is experienced in all things M&A, loves raising capital for businesses, literally drafts shareholder agreements in her sleep and has been involved in many exciting deals and projects in Australia and also across the South Pacific. Giselle is particularly passionate about emerging M&A trends, including entrenching a purpose driven and corporate sustainability approach to the deals she advises on.
Sanjay Wavde
Sanjay Wavde is a Partner in the Sydney Tax practice at Ashurst, advising on income tax matters, with a particular focus on funds management, mergers and acquisitions, and infrastructure transactions. He provides practical and strategic advice on a wide range of complex tax issues. His expertise includes advising on tax disputes, tax due diligence and structuring, and advising on tax-related transaction documentation issues. Sanjay has significant international experience. He has a Master of Laws in Taxation from New York University School of Law, is also admitted as an attorney in New York, and has practised taxation law in both Australia and the United States. He is a Chartered Tax Adviser of the Tax Institute and the Sydney Chair of the Taxation Committee of the Law Council of Australia.
Elke Bremner
Elke Bremner is a Senior Associate in the Sydney Tax practice at Ashurst and has over 10 years' experience in advising on indirect tax matters, with a special focus on GST and stamp duty as well as land tax and other State based taxes. She has extensive experience advising on a broad range of GST and State tax issues in respect of real estate and infrastructure projects, mergers and acquisitions, takeovers, foreign investment, restructuring and insolvency arrangements and litigation settlements. Elke is a Fellow of the Tax Institute of Australia and a member of the Property Council of Australia's Indirect Tax Committee.
William Kontaxis
William is an experienced corporate transactions lawyer and represents both private and public sector clients operating across a wide mix of industries. He is a commercially-focused problem solver and acts in all aspects of corporate transactions.
Venue
The Grace Hotel
77 York St
Sydney 2000
NSW
Australia