MAPOC

Our Expertise and Services

In addition to the following, Balfour Meagher has extensive experience in preparing and providing various continuing professional development (CPD) seminars, training and documentation to a range of M&A professionals and associations including: the Law Society of Western Australia, Australian Institute of Business Brokers, Legalwise, Real Estate Institute of Western (Business Brokers Division), Institute of Public Accountants, Performance Business Sales, CPDLive, pharmacy, Octavian Group, GMO. Keep explore our seminars.

Robust, contemporary Non-Disclosure Agreements (NDAs)/Confidentiality Deeds.
Advising on appropriate deal structures (including equity and debt arrangements), as well as
- preparation and negotiation of bespoke Heads of Agreement (“HoA”), Memoranda of Understanding, comprehensive scalable Terms Sheets and Non-Binding Indicative Offer (“NBIO”) documents.
- review and advice on Business Broker/Corporate Advisory/Equity Sales Agents terms & conditions of engagement,
- full integrated liaison with client stakeholders; including accounting/taxation advisors, financiers, insurers and other key parties.
Due Diligence (“DD”); including seller-side pre-market legal analysis & DD, comprehensive buyer-side acquisition-target DD and risk assessment reports, Digital Data Rooms’ establishment (e.g. Ansarada, iDeals etc) and management etc.
Drafting, reviewing and negotiation of Agreements for respective Sales or Purchases of active trading Businesses (e.g. ‘as going concern’/GST-free), Assets or Equity (e.g. shares, units or partnership interests).
- Transaction documentation, negotiation, and custom provisions-drafting (rise & fall, seller warranties indemnities and limitations of liability (including disclosure letters), retention mechanisms, earn-outs, working capital adjustments, locked box vs target and completion accounts, vendor-financing and related securitisation etc).
- Complicated share or asset acquisitions /divestments; including cross-border transactions and Foreign Investment Review Board (FIRB) applications/approvals.
- Complex private equity structuring; including shareholder, management and leveraged buy-outs, share/equityholder agreements, share buy-backs and selective capital reductions.
- Full-service, related commercial/corporate law support (e.g. finance and securities, property and leasing, employment and subcontracting, IT and intellectual property, supplier or third-party contracts’ review, corporate secretarial and succession arrangements etc).
Full Completion/transaction management services; including Settlement Statements, ASIC lodgements and PPSR management.

How can we Help?

Lifecyle M&A

1 2 3 4 5 6

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STEP 1 PRE-STAGING

Tax & accounting advice on the appropriate way to structure the sale. May be either:
equity sale; OR
asset sale/sale of a going concern (less common in M&A)
Seller side due diligence/pre-market legal analysis (optional but recommended), which includes:
- ASIC searches to view corporate structure & ownership
- PPSR - existing security interests registered against it
- ABR - business names & ABN
- WHOIS searches - domain names
- Material contracts - suppliers, customers, lease, creditors & debtors
- Employees & employee entitlements
- IP ownership
- Other relevant disclosures
Set up data room

STEP 2 INITIAL ENGAGEMENT WITH BUYER

MNDA to protect confidential information
Buyer conducts high level due diligence of financials via exchange or via data room
Negotiating draft Term Sheet / HoA / NBIO / MOU / Offer Letter, including:
- Exclusivity Period
- Cut-off date
- Sale Shares (in the case of equity sales)
- Current assets & liabilities
- Excluded assets (in the case of asset sales)
- Deposit (uncommon in equity sale, but more common in asset sales)
Term Sheet / HoA / NBIO / MOU / Offer Letter is signed.

Handshake icon with a security shield, symbolizing trust, agreement, and protection in business partnerships.

STEP 3 TOWARDS BINDING CONTRACT WITH BUYER

MNDA (stronger MNDA including protective covenants, non-compete using confidential information, & privacy)
Buyer due diligence of Target & Seller via data room, queries & responses
Negotiation of Share Sale Agreement or Business Sale Agreement;
- Determination of the conditions precedent (including how to satisfy them & timeframes)
- Consents to change of control or assignments of material contracts (e.g., suppliers, customers, lease, financiers);
- Transfer of employees
- Conditional (or unconditional) finance approval
- Material Adverse Change
- Discharge of security interests (for equity sale, over Target & Seller)
Tax & accounting advice on adjustments (e.g., actual working capital adjustment for equity sale)
Signing of conditional Sale Agreement (being conditional on the satisfaction or waiver of conditions precedent)

Bar chart illustrating growth with upward arrow, signifying increasing trends or positive business performance.

STEP 4 TOWARDS COMPLETION

Work to satisfy conditions precedent;
Completion & sign off of all due diligence;
Completion checklist (informed by the Sale Agreement);
Disclosure letter (relating to & caveating warranties)
Stocktake (less common in equity sale, more common in asset sale)
Settlement Statement (uncommon in equity sale, more common in asset sale)

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STEP 5 COMPLETION

Completion obligations (informed by the Sale Agreement); and may include:
- Termination of existing employment contracts
- Deeds of Assignment or written consents to change in control of various material contracts;
- Deed of Assignment of Intellectual Property
- Vendor Finance/General Security Deed;
Payment of purchase price;
Release and undertaking to discharge of final third party security interests;
Registering security interests re vendor finance/earnout/retention sums/balance of purchase price.

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STEP 6 POST-COMPLETION

Actual working capital adjustment calculations & payment (common in equity sale, unheard of in asset sale)
Updating records with authorities
- Equity sale: ASIC for shares & directorship;
- Third parties (suppliers, customers, lease, financiers;
- Licensing authorities
Comply with restraint of trade/protective covenants
Comply with vendor finance/earnout/retention sums/balance of purchase price.