Navigating the Deal: Challenges in Buying and Selling Businesses – a recorded online conference

Session 1: Getting Ready to Rumble: Share or Asset Sale? Is the Choice Still Yours?

When buying a business that is operated by a company an important consideration is whether the buyer should purchase the shares of the company comprising the business or the assets out of the company itself. A key driver of this decision is often taxation implications. This session provides an overview of the taxation implications of share versus asset sales, with a focus on how these decisions have become increasingly vulnerable to attack on the basis of anti avoidance rules. It covers:

• The options for implementation of sale structures having regard to anti-avoidance measures in a share sale vs asset sale (including dealing with assessments and justifying share over an asset sale)
• The recent shift in focus of revenue offices at state level and the growing rise of anti-avoidance activity
• The tax avoidance characteristics of the sale structure drawing the current attention of the ATO, when to expect a structure to be attacked and how to best respond if it does

Session 2: Human Capital: Employment Law Issues When Buying a Business

The continued cooperation and goodwill of employees is often an understated but critical aspect to a business’s operation and success. It is therefore important not to overlook employees (particularly key personnel) and plan for all employment law considerations when buying a business. This session will guide lawyers through what to look out for with respect to employees and employment law considerations when purchasing a business. In particular, this session will look at:

• Due diligence issues:
  • ascertaining accrued entitlements
  • ensuring compliance with the transfer of business rules under the Fair Work Act
• How to correctly identify employee relationships and issues which can arise from the mis-categorisation of employees
• The types of leave entitlements to be considered, how to check compliance with awards including capitalisation of overtime payments to avoid future claims for purchaser
• Restraint of trade and exclusivity issues
• When can an employee argue that their employment has been terminated as part of a business acquisition?

Session 3: Hidden Treasures or Ticking Time Bombs? Evaluating IP Assets When Buying a Business  

When buying a business, the maximisation of business assets, including intellectual property (IP) assets, is obviously central to the transaction. However, there is more to the IP considerations of the business sale than just registered designs, trademarks or patents. This session will focus on the purchase of businesses from an IP perspective and discuss:

• Identifying the IP assets and ensuring / proving ownership
• Managing the impact of non/misidentification on sale of businesses
• Valuing the IP and goodwill of an acquisition target
• How to best manage the assignment and change of control of IP ownership
• Dealing with representations and warranties related to ownership of IP
• Identifying key red flags in IP related agreements
• Understanding the scope of indemnification and disclaimers by seller on IP issues