14th May 2019
After years of hard work building up a business, the prospect of selling it on to another company or the current management team will be the light at the end of the tunnel. Unless you are a serial entrepreneur, a more leisurely life is ahead when the stresses and strains of running a business will be behind you.
While the purchaser should have a good idea of the business that they are buying, the last thing you want is for some nasty skeletons to appear from the cupboard while you are enjoying your new-found freedom. For example, they would not want to discover a problem over rights of access or a major dispute with a key supplier which could disrupt their ability to carry on the business. Consequently, they will demand warranties from you.
‘Alongside the matter of the price for the business, the issue of warranties will be one of the biggest concerns to anyone selling a business’ says corporate specialists with Myers & Co. ‘The buyer has no legal protection in respect of the assets and liabilities which are being purchased; so, representations made by the seller in the warranties provide important clarity on the target company.’
During the sale process, you will need to disclose information to the buyer via due diligence. It will be necessary to give some form of written statement (a warranty) which gives the buyer some contractual protection over the value in the business. This information will relate to the target company such as the accounts, details of employees, premises and the commercial contracts with suppliers and customers.
For example, you may give a warranty as to the status of a commercial contract which you believe will deliver a specific financial outcome. If this is inaccurate or false, then the buyer could claim for breach of warranty if they can prove the breach and quantify the loss.
The extent and nature of the warranties that a seller will be asked to enter into is driven by both the structure of the target business and the value of the target. As a general rule of thumb, the greater the value of the target company the more extensive the level of warranties will be.
There are a number of common areas that warranties focus on and these include:
In regard to potential tax liabilities, this is one area in which it is likely your solicitor will direct you to an accountant for support with these bespoke warranties.
You will only be able to give a warranty insofar as you are aware of a specific set of facts. Often the first draft document that the buyer sends over will contain an array of warranties, some of which may not be relevant to the nature of your company. Your solicitor will be able to remove the irrelevant warranties at this stage.
For the warranties which are relevant to your business; your solicitor can draft specific wording into a contract to limit liability, for example to a certain percentage of the purchase price. Alternatively, it may be appropriate to insist that any claim follows a prescribed process for commencing a claim and within a set timeframe.
You will need a great deal of legal support during the transaction. Warranties are extremely technical; and, it is not uncommon for a solicitor to go through each warranty line by line to ensure that a seller is not exposed to the risk of future litigation because something has not been disclosed against a warranty. This can be time well spent if it avoids future claims and the legal expenses of a dispute-never mind the disruption to your retirement!
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.