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Managing business transactions
during COVID-19
Peter McLaughlin, Director
Nick Robson, Lawyer
PresentingWednesdays with RedchipWebinar
Peter McLaughlin
Director
peterm@redchip.com.au
Peter is a director of the corporate
transaction team, regularly advising
on corporate and commercial
transactions of all sizes. He also
heads up the franchising, licensing
and distribution side of our practice.
Nick Robson
Lawyer
nickr@redchip.com.au
Whether you’re selling a business,
merging organisations or acquiring a
new business or property, Nick
ensures his clients’ transactions are
effected with optimal commercial
results and minimal risk.
Business Exits
What does business exit mean?
Involuntary Voluntary
• Sickness/death
• Insolvency
• Retirement without
succession plan
• Downturn in the market
• Loss of key customer
• Selling out completely
• Selling down partly
• Management buyout
• Equity investment
Remember:
Exit is a natural part of
the business lifecycle
What does a business exit look like?
• Asset sale or share sale
• Sale to third party
• Sale to employees
• Progressive sell down
• Sale with earnout
What is the process?
Post
Completion
Obligation
Honouring
warranties and
indemnities
Restraint of
trade
obligations
What’s next?
Completion
Performance
of Contact
Negotiation
& Signing
of Contract
Due
Diligence
Buyer due
diligence
investigations
Q&A / requests
for further
information
Management
meetings
Pre Due
Diligence
Phase
Term sheet
signed
Preparing and
signing NDAs
Setting up data
rooms
Preparatory
Phase
Identifying
potential
buyers
Seller and
advisers
conduct due
diligence
investigations
An adviser’s role
• Focus the client – what a sale looks like for
them
o $ in hand
o Tax outcomes
o Life after sale
• Rally a team
• Proactively start the conversation early –
no “renovation rescue”
BUT – don’t take your eyes off the ball
Seven steps for sellers
Step 1 - Have a plan
Strategic plan
• Articulate purpose and
direction of the business
• Buyers are buying the future
of the business so map it out
Sale ready plan
• Tactical priorities
• Who does what when?
• Pretend you are advising the
buyer – what do you want to
see?
• Past, present and future
numbers
• Monthly management reports
• Up-to-date balance sheet (clear
out lifestyle assets)
• Lay it all out for the buyer
Step 2 - Get the numbers right
Step 3 - Implement a leadership team
• No one-man show
(unless it’s a true owner-
operator business)
• Can you demonstrate a
robust ownership
succession plan?
• Would a non-executive
director add some
management firepower?
• Revenue/product concentration
• Unresolved or pending disputes or
litigation
• Incomplete records and unsigned
contracts
• Articulate to a buyer any obvious
business risks and how they are being
managed
• Don’t give the buyer ammunition to
negotiate price down
Step 4 - Highlight the blind spots
Step 5 - Get the structure right
• Are the assets in the
right entity?
• What are the tax
outcomes?
• Restructure?
• Ties into the decision of
asset sale vs share sale
Step 6 - What do buyers want to see?
Plan in advance – get ready for show and tell
• Seller due diligence – identify and clean
up issues before the buyer comes along
• How to manage the sharing of
information (not by email)
• Lead this process with the both the
seller and the buyer
• Make sure documents support the value
drivers
Step 6 - What do buyers want to see?
• Understanding the quality of historical
earnings
• Key customer and supplier relationships
• Working capital and capex requirements
• Strength of the management team
• Employees
• Technology and intellectual property issues
• Other issues that may be specific to
business/industry
• Accountant
• Financial adviser
• Lawyer
• Deal adviser
Get on the same page
early
Step 7 - Put the team together
JobKeeper and Business Sales
What is the JobKeeper scheme?
• 30 March 2020 to 27 September 2020
• $1,500 per fortnight per eligible employee for
eligible businesses
• TurnoverTest: where turnover for a month in
2020 is less than turnover for the same month in
2019 by at least 30%
• Employee Eligibility: employed at 1 March
2020, over 16 years old, employed full/part time
or casually employed for longer than 12 months,
Australian resident
• Wage Condition: employer must pay employee
at least $1,500 per fortnight
What happens if the business changes hands?
Employees in standard business sale
1. Prior to completion, the Purchaser gives employees offers of
employment (terms no less favourable)
2. Employees can accept offer (transferring employees) or decline
offer (non-transferring employees)
3. Transferring employees are terminated by the Seller on completion
and immediately commence employment with the Buyer
Employees employed in the business remain eligible employees even if the
business changes hands!
JobKeeper due diligence
Issues
1. Repayments and interest
2. Record keeping obligations
3. Joint liability
Solutions
1. Inspect business records
2. Warranties
3. Indemnities
Business sales and rent relief
• Eligible for JobKeeper = Eligible for rent
relief
• No mandatory relief amount or formula
• Guidelines and dispute resolution only
 Finalise and document rent relief
 Complete sale while negotiations are
pending
COVID-19 document execution
 Sign Deeds electronically
 Witnessing via audio-visual link
 Expires on 31 December 2020
Questions?
Please send them through
using the Q&A section 07 3223 6100
Thank you for tuning in
NEXTWEBINAR –WEDNESDAY 19 AUGUST
Asset Protection

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Managing business transactions during COVID-19

  • 1. Managing business transactions during COVID-19 Peter McLaughlin, Director Nick Robson, Lawyer
  • 2. PresentingWednesdays with RedchipWebinar Peter McLaughlin Director peterm@redchip.com.au Peter is a director of the corporate transaction team, regularly advising on corporate and commercial transactions of all sizes. He also heads up the franchising, licensing and distribution side of our practice. Nick Robson Lawyer nickr@redchip.com.au Whether you’re selling a business, merging organisations or acquiring a new business or property, Nick ensures his clients’ transactions are effected with optimal commercial results and minimal risk.
  • 4. What does business exit mean? Involuntary Voluntary • Sickness/death • Insolvency • Retirement without succession plan • Downturn in the market • Loss of key customer • Selling out completely • Selling down partly • Management buyout • Equity investment
  • 5. Remember: Exit is a natural part of the business lifecycle
  • 6. What does a business exit look like? • Asset sale or share sale • Sale to third party • Sale to employees • Progressive sell down • Sale with earnout
  • 7. What is the process? Post Completion Obligation Honouring warranties and indemnities Restraint of trade obligations What’s next? Completion Performance of Contact Negotiation & Signing of Contract Due Diligence Buyer due diligence investigations Q&A / requests for further information Management meetings Pre Due Diligence Phase Term sheet signed Preparing and signing NDAs Setting up data rooms Preparatory Phase Identifying potential buyers Seller and advisers conduct due diligence investigations
  • 8. An adviser’s role • Focus the client – what a sale looks like for them o $ in hand o Tax outcomes o Life after sale • Rally a team • Proactively start the conversation early – no “renovation rescue” BUT – don’t take your eyes off the ball
  • 9. Seven steps for sellers
  • 10. Step 1 - Have a plan Strategic plan • Articulate purpose and direction of the business • Buyers are buying the future of the business so map it out Sale ready plan • Tactical priorities • Who does what when?
  • 11. • Pretend you are advising the buyer – what do you want to see? • Past, present and future numbers • Monthly management reports • Up-to-date balance sheet (clear out lifestyle assets) • Lay it all out for the buyer Step 2 - Get the numbers right
  • 12. Step 3 - Implement a leadership team • No one-man show (unless it’s a true owner- operator business) • Can you demonstrate a robust ownership succession plan? • Would a non-executive director add some management firepower?
  • 13. • Revenue/product concentration • Unresolved or pending disputes or litigation • Incomplete records and unsigned contracts • Articulate to a buyer any obvious business risks and how they are being managed • Don’t give the buyer ammunition to negotiate price down Step 4 - Highlight the blind spots
  • 14. Step 5 - Get the structure right • Are the assets in the right entity? • What are the tax outcomes? • Restructure? • Ties into the decision of asset sale vs share sale
  • 15. Step 6 - What do buyers want to see? Plan in advance – get ready for show and tell • Seller due diligence – identify and clean up issues before the buyer comes along • How to manage the sharing of information (not by email) • Lead this process with the both the seller and the buyer • Make sure documents support the value drivers
  • 16. Step 6 - What do buyers want to see? • Understanding the quality of historical earnings • Key customer and supplier relationships • Working capital and capex requirements • Strength of the management team • Employees • Technology and intellectual property issues • Other issues that may be specific to business/industry
  • 17. • Accountant • Financial adviser • Lawyer • Deal adviser Get on the same page early Step 7 - Put the team together
  • 19. What is the JobKeeper scheme? • 30 March 2020 to 27 September 2020 • $1,500 per fortnight per eligible employee for eligible businesses • TurnoverTest: where turnover for a month in 2020 is less than turnover for the same month in 2019 by at least 30% • Employee Eligibility: employed at 1 March 2020, over 16 years old, employed full/part time or casually employed for longer than 12 months, Australian resident • Wage Condition: employer must pay employee at least $1,500 per fortnight
  • 20. What happens if the business changes hands? Employees in standard business sale 1. Prior to completion, the Purchaser gives employees offers of employment (terms no less favourable) 2. Employees can accept offer (transferring employees) or decline offer (non-transferring employees) 3. Transferring employees are terminated by the Seller on completion and immediately commence employment with the Buyer Employees employed in the business remain eligible employees even if the business changes hands!
  • 21. JobKeeper due diligence Issues 1. Repayments and interest 2. Record keeping obligations 3. Joint liability Solutions 1. Inspect business records 2. Warranties 3. Indemnities
  • 22. Business sales and rent relief • Eligible for JobKeeper = Eligible for rent relief • No mandatory relief amount or formula • Guidelines and dispute resolution only  Finalise and document rent relief  Complete sale while negotiations are pending
  • 23. COVID-19 document execution  Sign Deeds electronically  Witnessing via audio-visual link  Expires on 31 December 2020
  • 24. Questions? Please send them through using the Q&A section 07 3223 6100
  • 25. Thank you for tuning in NEXTWEBINAR –WEDNESDAY 19 AUGUST Asset Protection