问:我和我的太太6个月前搬到新西兰来。在过去的几个月中,我们一直在找一份我和我的太太可以经营,同时又能给我们提供住宿的生意。我们已经找到了一个小汽车旅馆的生意。一个商业经纪人正在帮助我们联系收购事项。经纪人为我们起草了一份名为“生意买卖协议”的协议。在新西兰购买一份生意有哪些要求以及在签协议前需要注意些什么?
答:在签署经纪人为您展示的协议前寻求法律建议和支持是明智的。这将让您有机会获得律师的指导并有机会将保护您的条款放入协议。我们为您特别指出一些商业购买协议中常见的部分给您作参考。
协议的格式
在新西兰,卖家和买家在购买和出售生意时使用的协议有几种格式。最常用的协议格式是奥克兰地区法律协会和新西兰房地产协会格式协议(ADLS协议)。这就是经纪人向您展示的格式协议。
协议条款
一份生意购买协议至少应包括如下必要条款:
卖家和买家的名字;
- 营业场所的描述;
- 生意使用的描述;
- 购买价格;
- 押金数额;
- 卖家的协助期和卖家的贸易管制;
- 有形和无形资产清单; 及
- 与营业场所有关的租赁细节.
尽职调查
在购买一份生意前,建议您对该生意做一个尽职调查。尽职调查是审核与生意有关的财务信息,数据和生意运作情况的一个过程。卖家时常会在提供所有的与生意有关的财务信息和数据前就要求买家签订买卖协议。如果您不熟悉会计和所得税记录,我们建议您向有经验的会计师寻求专业意见,以帮助您理解有关信息和协助您对生意进行评估。您的律师可以协助您完成尽职调查中对有关租赁文件和其他由卖家之前签署的,但是对接手该生意的人仍然具有约束力的协议进行审核。
- 购买价格和资产
总共的购买价格通常包括三个部分,有形资产的价值,无形资产的价值及存货的价值。有形资产包括机器,设备,家具,配件和动产。无形资产(或通常所指的信誉)包括生意的名字和声誉及客户基础。对您正购买的生意的有形和无形资产进行认真的审核和评估将是十分明智的。确保您获得汽车旅馆的名字并有权获得该生意的客户资料也是十分重要的。此外,还有必要检查您正获得的生意资产不存在抵押和其他费用。
- 租赁-准租并获得房东对租约转让的批准
在新西兰租赁经营场所是很常见的。如果生意的经营场所是租赁的,让您的律师审核所有有关租赁文件就很重要。ADLS 协议规定自协议签署之日或从收到租赁文件之日起(以较晚的时间为准),买家有5个工作日审核并决定同意或不同意租赁条款。
生意购买协议几乎总会包含一个条件,即需要在房东(或场所的所有权人)同意向生意购买人转让/让渡租约的条件下,生意的出售才生效。因此您可能会被要求向房东提供财务资料。
卖家的协助期和卖家的贸易管制
协议通常规定在买家接手生意后,卖家应在一段时间内对买家提供协助。在协议中,买家要求卖家接受贸易管制也是很常见的。这就意味着卖家在某段时间内不得从事与出售给买家的生意相近的业务。
7. 雇员
您也应考虑您是否希望保留现有的雇员或让卖家终止雇佣他们。由于这一决定会引发相应的法律后果,这些都是您应该与您的律师讨论的内容。
请注意本文只为读者提供一般信息。在这篇文章中所包含的内容不构成法律意见。如需获得更多的相关信息,请联系法信律师事务所的专业团队。
原文如下:
BUYING A BUSINESS IN NEW ZEALAND
Question: My wife and I moved to New Zealand six months ago. For the past few months we have been looking at buying a business that my wife and I can run, which can at the same time provide accommodation for us. We have found a small motel business. We have a business broker helping us with the purchase. The broker has drawn up an agreement, entitled “Agreement for Sale and Purchase of a Business”, for us. What does buying a business in New Zealand entails and what should we look out for before signing the agreement?
Answer: You are wise to seek legal advice and assistance before signing the agreement that the broker has shown to you. This will give you the opportunity to get guidance from your lawyer and request the insertion of terms into the agreement, which protects you. We highlight for you some common aspects found in agreements for the purchase of a business for you to consider.
- The form of Agreement
There are several forms of agreements used by vendors and purchasers when buying and selling business in New Zealand. The most commonly use form of agreement is the Auckland District Law Society and Real Estate Institute of New Zealand form of agreement (the ADLS Agreement). This is the form of agreement the broker has shown to you.
- Terms of the Agreement
An agreement for purchase of a business should include, at the minimum the following essential terms:
Names of the vendor and the purchaser;
- Description of the business premises;
- Description of the use of the business;
- The purchase price;
- The deposit amount;
- The Vendor’s assistance period and the vendor’s restraint of trade;
- The list of tangible and intangible assets; and
- Lease details in respect of the business premises.
Due Diligence
Before purchasing a business it is recommended that you carry out a due diligence of the business. Due diligence is the process of checking financial information and data relating to a business and how the business is performing. Often the vendor will require the purchaser to enter into an agreement for sale and purchase of a business before he or she discloses all financial information and data relevant to the business. If you are unfamiliar with accounting and income tax records we recommend you seek expert opinion from an experienced accountant to help you understand the information and assist you in your evaluation of the business. Your lawyer could assist you to complete the due diligence in respect of the lease documents and other agreements that the vendor has entered into that is intended to be binding on subsequent owners of the business.
- Purchase price and Assets
The total purchase price is usually comprised of three parts, the value of the tangible assets, the value of the intangible assets and the value of the stock in trade. The tangible assets of a business include machinery, equipment, furniture, fittings, and chattels. The intangible assets of the business (or goodwill as it is commonly known) include the name and reputation of the business and the client base of the business. It would be prudent for you to examine and evaluate the tangible and intangible assets of the business you are purchasing carefully. It is also important to ensure that you will also be acquiring the name of the motel and are entitled to the information relating to clients kept by the business. Furthermore, it will be necessary to check that the business assets you are acquiring are free of mortgages and other charges.
Lease – Approval and Landlord’s consent to Assignment of Lease
It is common in New Zealand for the premises used for the business to be leased. Where there is an existing lease for the business premises it is important to have your lawyer review all relevant lease documents. The ADLS Agreement provides that the purchaser has five working days from the date of the agreement or from the date of receipt of the lease documents, whichever is the later to review and approve or disapprove the lease terms.
The agreement to purchase the business will almost always contained a condition that the sale of the business need to be conditional upon the landlord (or owner of the premises) consenting to the transfer/assignment of the lease to the purchaser of the business.As such you will be required to provide financial information to the landlord.
- Vendors assistance period and Restraint of Trade
The Agreement will usually provide for the vendor to assist the purchaser for a period of time after the purchaser has taken over the business. It is not uncommon for the purchaser to have the vendor subject to a restraint of trade in the Agreement. This means that the vendor is bound for certain period not to be closely involved in a business that competes with the business sold to the purchaser.
7. Employees working in the business
You should also consider whether you wish to retain the employees of the business or have the vendor terminate their services. These are issues which you should discuss with your lawyer as there are significant legal repercussions attaching to that decision.
The above article is intended to provide brief and general information only. The contents contained in this article are not exhaustive on the topic in question. They do not constitute legal advice and should not be relied on as such. For legal advice please contact our professional team at Forest Harrison. |