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, The Pharmacy Guild of Western Australia, Octavian Group, GMO Business Brokers. Keep exploring our huge range of Seminars and Presentations.
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?
M&A LIFECYCLE
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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.
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)
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)
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.
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.
RECENT TRANSACTIONS
Sale of insurance brokerage business, Mavco Insurance Group to Australian subsidiary of international insurance firm, Arthur J. Gallagher & Co (NSYE: AJG)
Sale of educational assessments software (for teachers, schools and national education departments) company, Pairwise Pty Ltd acquired by Australian listed company, 3P Learning Ltd (ASX: 3PL).
Sale of company Asset Management Engineers (AME) to private equity investment syndicate.
Sale of smart meters/ embedded networks/electricity resale business, Carbon EMT to WINconnect, ultimately then acquired by Origin Energy Ltd (ASX: ORG).
National plastics manufacturer and packaging company sold to Australian subsidiary of US company, TricorBraun.
Sale of licensed financial planning and advisory business, Wealth Management Partners sold to Australian subsidiary of listed US company, Arthur J. Gallagher & Co (NSYE: AJG)
Merger of accounting business, BSM Accountants with Tilenni Stiles, accounting and financial planning business.
Sale of shares in Australian Financial Services Licensee (AFSL) company, Sphere Capital Pty Ltd.
Sale of licensed real estate agency company, Acton Belle Property | Mandurah
Purchase of licensed wholesale producer and winery business, Duke’s Vineyard as well as vineyard property.
Purchase of business and land, Bridgetown Caravan Park.
Sale of registered pharmacy business, Exmouth Pharmacy.
Sale of units (equity) in licensed insurance brokers, Leed Insurance Brokers to Coverforce Leeds/Westminster.
Purchase of specialised gas detection business, Gas Alarm WA.
Purchase of licensed hotel/accommodation, restaurant, distillery and bottle shop, Carlisle Hotel & Distillery.
Sale of accredited tour operator business, Kimberley Safari Tours.
Sale of liquid and powdered food blends-manufacturer company, Magnum Essence Pty Ltd.
Sale of shares and units in public golf course, Hill View Golf Course.
Sale of electronic transport monitoring and control systems company, OEM Technology Solutions Pty Ltd to Australian subsidiary of Swiss portfolio company, Duagon Holdings AG.
+61 8 9322 3842
admin@bmlegaladvisors.com.au
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