Sales on a Going-Concern Basis

Abstract

For many entrepreneurs, selling your business is an unique, once-in-a-lifetime event. Selling or transferring one’s business to a third party is in many ways radical. First, in a rather irrational way: selling your business means goodbye to what has been built or continued for several years or for decades. Second, more rationally, entering into a selling process brings its own dynamics: informally attracting candidate buyers or find candidates via public marketing, exchanging business information, negotiation phase, a letter of intent, including clauses on confidentiality, due diligence, valuation and price-setting and the role of certain conditions precedent and guarantees in the entire proces, and finally closing the deal and transfer the business. In addition to its specific contractual clauses relevant for each individual sales process, other legal issues surround such a sale and transfer. On the buyer’s side for instance the way to finance the acquisition, antitrust pitfalls, stock listing requirements or requirements for transferring public law permits, certifications and licences or the uncertainly relating to the possible loss of carry forwards against taxation that may require the consent of third parties to be transferred, if they can be transferred at all).