29 December 2022

Term sheets: A necessity for the sale of any business

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Term sheets outline the terms and conditions of a proposed deal and serve as a starting point for negotiations.
Australia Corporate/Commercial Law
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When it comes to selling a business, there are many factors to consider and negotiations to be had. One important document that can help streamline the process is a term sheet. Term sheets are an essential part of the process of buying or selling a business. They outline the terms and conditions of a proposed deal and serve as a starting point for negotiations.

What is a Term Sheet?

A term sheet is a non-binding document that outlines the terms and conditions of a potential business transaction. It is usually used in the early stages of negotiations and serves as a starting point for more detailed legal agreements to be drawn up later on.

A term sheet is a document that outlines the terms and conditions of a proposed business deal. It's not a legally binding document, but it serves as a starting point for negotiations and can be used as a reference point during the due diligence process.

Term sheets typically include details on the purchase price, financing, governance, and other important terms of the deal. They can be used in a variety of business transactions, including mergers, acquisitions, and investment rounds.

Why are Term Sheets Necessary for the Sale of a Business?

There are several reasons why term sheets are necessary for the sale of a business:


    By outlining all the key details of the transaction, including the purchase price, payment terms, closing date, and any contingencies that need to be met. This helps both parties have a clear understanding of what is expected of them and helps to avoid misunderstandings or disputes down the line.

    Negotiating the terms of a business sale can be a time-consuming and resource-intensive process. A term sheet allows both parties to quickly and efficiently discuss the key terms of the deal and reach a mutually beneficial agreement. It helps to clearly define the terms of the deal upfront, which can help to avoid lengthy and costly legal negotiations later on.

    Serves as a legal document that can be used to protect the interests of both the seller and the buyer in the event of a dispute. A term sheet can include provisions that protect both the buyer and seller, such as confidentiality clauses and exclusivity provisions. It clearly outlines the terms and conditions of the sale, including any warranties or indemnities that may be included.

Finance and Tax Considerations

One of the most important considerations in any business deal is the financial aspect. Term sheets will often include details on the purchase price, financing arrangements, and any contingencies that may affect the final price.

It's important to carefully review and understand the financial terms of a term sheet, as they can have significant implications for the buyer or seller. For example, the purchase price may be structured as a combination of cash, debt, and equity, or it may include contingencies such as earn-out provisions that could affect the final price.

Tax considerations are also an important part of any business deal, and term sheets should include details on how taxes will be handled as part of the transaction. This may include information on the tax implications for the buyer and seller, as well as any tax credits or incentives that may be available.

Inclusions and Conduct

Term sheets may also include provisions related to physical assets such as plant, fixtures, and fittings. These are important considerations, as they can have a significant impact on the value of the business. For example, if a business includes valuable manufacturing equipment or proprietary technology, this could be a major selling point for the buyer and therefore should be included on the term sheet.

In addition to physical assets, term sheets may also include provisions related to the conduct of the business and parties involved during the negotiation and due diligence process. This may include restrictions on the seller's ability to take on new debt or make significant changes to the business during this time.

Due Diligence and Legal Considerations

Due diligence is the process of thoroughly researching and evaluating a business before entering into a deal. It's an important step in the term sheet process, as it helps ensure that both parties have a clear understanding of the risks and opportunities associated with the transaction.

During the due diligence process, buyers will typically review a variety of documents and perform various analyses to assess the financial health, legal status, and overall viability of the business. This may include reviewing financial statements, contracts, patents, and other legal documents.

In addition to financial and legal due diligence, term sheets may also include provisions related to liquor licences, intellectual property, and restraint of trade. For example, the term sheet may specify which intellectual property assets will be transferred as part of the deal, or it may outline any restrictions on the use of the business's name or brand.

Checklist for Sale or Purchase of Shares

If you are considering the sale or purchase of shares in a business, there are a few key things you should consider:

  1. Price: The price for the shares being sold or purchased should be clearly stated in the term sheet. This can include the total purchase price, as well as any payment terms or contingencies.
  2. Ownership and control: The term sheet should outline the percentage of ownership and control the buyer will have in the company after the transaction is completed.
  3. Management and employment: It's important to clarify any changes to management and employment that will result from the sale or purchase of shares.
  4. Liabilities and warranties: The term sheet should outline any liabilities or warranties that will be assumed by the buyer or seller as a result of the transaction.
  5. Closing conditions: The term sheet should specify any closing conditions that must be met before the transaction can be completed. These can include regulatory approvals, financing arrangements, and other contingencies.
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