Malcolm ZoppiSun Oct 15 2023

Share Purchase Agreement vs Asset Purchase Agreement: Key Differences Explained

Learn about the differences between share purchase and asset purchase agreements!

Share Purchase Agreement vs Asset Purchase Agreement: Key Differences Explained

share purchase agreement v asset purchase agreement

When entering into a business transaction, it’s crucial to understand the difference between a share purchase agreement and an asset purchase agreement. Both methods of business acquisition have their own set of advantages and disadvantages, which can significantly impact the outcome of the deal. As a buyer or seller, it’s essential to determine which type of transaction best suits your objectives, financial considerations, and legal requirements.

A share purchase agreement involves the transfer of ownership of a company through the sale of its shares. This means that the buyer acquires the entire company, including its assets, liabilities, and obligations. In contrast, an asset purchase agreement involves the transfer of specific assets and liabilities, allowing the buyer to pick and choose which aspects of the business they want to acquire. This can be beneficial for buyers looking to mitigate potential risks and focus on certain aspects of the business, while posing additional challenges for sellers.

Key Takeaways

  • Share purchase agreements involve the transfer of an entire company, while asset purchase agreements focus on specific assets and liabilities.
  • Buyers and sellers must consider their objectives, financial implications, and legal requirements when deciding on the type of transaction.
  • Conducting due diligence is crucial to mitigating risks and ensuring a successful purchase agreement.

Understanding Share and Asset Purchases

In this section, we will explore the differences between share purchase and asset purchase. We will know how we’ll define each term and discuss the implications and advantages of each type of transaction.

Defining Share Purchase

A share purchase is a transaction where the buyer acquires the shares of a company from the selling company or shareholder or its existing shareholders. This is typically done through a Share Purchase Agreement (SPA), which outlines the terms and conditions for the sale and purchase of shares. By purchasing the shares, the buyer gains ownership and control of the target company and shareholders, assuming both its assets and liabilities.

In a share purchase, the legal entity of individual seller and the company remains the same, and there is no need to transfer individual assets or contracts. Some key aspects of a Share Purchase Agreement include payment schedules, tax indemnities, warranties provided by the seller, and completion accounts.

Defining Asset Purchase

An asset purchase, on the other hand, involves the buyer acquiring specific assets and liabilities from a the seller company’s business, rather than the shares themselves. This transaction is executed through an Asset Purchase Agreement (APA), which details what assets and liabilities are included in the purchase, and the terms and conditions for their transfer.

In an asset purchase, the buyer can select which assets and liabilities it wishes to acquire, allowing for more flexibility and potentially reducing risk exposure. However, this method may also require additional administrative and legal work to transfer individual assets, contracts, and licences.

Both Share Purchase Agreements and Asset Purchase Agreements have unique advantages and implications. Depending on your objectives and risk tolerance, you may choose to engage in either a share purchase or an asset purchase.

Fundamentals of a Purchase Agreement

Main Parties Involved

In any purchase agreement, there are two main parties involved: the buyer and the seller. The buyer is the party looking to acquire either the shares or assets of a company, while the seller is the other party, looking to sell their ownership in the desired assets of the company. These agreements are legally binding contracts that require both parties to adhere to the specified terms and conditions, ensuring a smooth transaction.

Key Terms and Conditions

A purchase agreement outlines several key terms and conditions to govern the transaction, some of which include:

  • Conditions Precedent: These are the conditions that need to be satisfied before the transaction can be completed. They may relate to regulatory approvals, third-party consents, or certain milestones being achieved by the company.
  • Consideration: This signifies the amount that the buyer agrees to pay the seller for the shares or assets. The consideration can be in the form of cash, shares in the acquiring company, or a combination of both.
  • Warranties: Both share purchase and asset purchase agreements typically contain warranties provided by the seller. These are statements made by the seller regarding the business, its financial position, and any potential liabilities. Warranties give the buyer assurance that they are purchasing a company with minimal undisclosed issues.
  • Indemnities: Indemnities protect the buyer from potential losses that may arise due to breaches of warranties or other occurrences specified in the agreement. In essence, the seller agrees to compensate the buyer if certain events occur.
  • Completion Accounts: These come into play during the final stages of a transaction, ensuring that the financial position of the company lines up with what was outlined in the agreement. If there are discrepancies, the consideration paid may be subject to adjustments.

Keep in mind that each purchase agreement will have its unique terms and conditions catered to the particular transaction. The details and specifics of the agreement will depend on factors such as the complexity of the business, the parties involved, and the nature of the transaction. Always consult with a legal professional to ensure that your purchase agreement addresses all relevant considerations.

Legal Aspects of Purchase Agreements

Legal Obligations

In both share purchase agreements and asset purchase agreements, there are distinct legal obligations that you must adhere to throughout the process. For share purchases and asset purchases only, you are obligated to fulfill the terms set out in a share purchase agreement which will detail the conditions under which the buyer purchases the shares. This might include completion accounts, tax indemnities (concerning tax liabilities), payment schedules, and warranties provided by the seller.

In an an asset sales and purchase agreement, your obligation is to ensure that the terms of the sale and purchase of specific assets are accurately documented. This agreement typically covers the assets being transferred, the liabilities being allocated, and other related matters such as employees and contracts.

Role of Lawyers and Accountants

Lawyers and accountants play a crucial role in both share purchase agreements and asset purchase agreements. Solicitors can provide legal advice and ensure that all necessary documentation is prepared and in compliance with relevant laws and regulations. They are responsible for doing legal due diligence, drafting the purchase agreements, reviewing warranties, and negotiating indemnities.

Accountants, on the other hand, focus on the financial aspects of the transaction. They help to assess the value of the shares or other assets being purchased, advise on the tax implications of the transaction, and prepare necessary financial statements and reports.

Resolution and Completion Process

The resolution and completion process for both share purchase agreements and asset purchase agreements generally involve the following steps:

  1. Conditions Precedent: This refers to conditions that must be satisfied before the transaction can be completed. Examples include regulatory approvals, third-party consents, or the completion of due diligence.
  2. Negotiation: Parties (with the help of their solicitors and accountants) will negotiate the terms and conditions of the purchase agreement, including warranties and indemnities.
  3. Signing: Once the purchase agreement terms are finalised and agreed upon, the parties will sign the document to formalise the transaction.
  4. Completion: Following the signing of the purchase agreement, parties must then satisfy any outstanding conditions precedent. Once all conditions are met, completion of the transaction takes place, and the legal ownership of the shares or assets is transferred to the buyer.

By understanding the legal aspects of share purchase agreements and asset purchase agreements, you can better navigate the process while ensuring your interests are protected.

Share Purchase Agreement Specifics

Shareholder’s Role

In a share purchase agreement (SPA), shareholders play a vital role in shareholders agreement as they are the ones selling their shares in the company. The share sales agreement outlines various terms and conditions, such as the number of shares being sold, the price per share, and the method of payment. As a shareholder, you should carefully review the SPA to ensure that it accurately reflects the negotiated terms and conditions, and that your interests are protected.

Selling of Shares

A share purchase agreement involves the selling of shares in a company, transferring the share ownership from the seller to the buyer. This can include the entire issued share capital or a selected number of shares. The sale of shares enables the buyer to acquire a stake in the company, alongside any associated assets and liabilities. The buyer may negotiate with the seller on various aspects of the sale, such as the purchase price, payment schedules, and warranties provided by the seller.

Risk Factors in Share Purchase Agreement

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When engaging in a share purchase agreement, it’s crucial for you to be aware of potential risk factors. Some common risks associated with SPAs include:

  1. Warranties and indemnities: As a buyer, you’ll likely seek warranties from the seller to minimise the risk of any undisclosed liabilities or issues with the company. The seller may also provide indemnities to cover any tax liabilities or other specific risks.
  2. Conditions precedent: The agreement may include specific conditions that must be satisfied before the sale can be completed, such as obtaining regulatory consents or approval from the company’s board of directors. These conditions can cause delays or even result in the deal not proceeding.
  3. Capital gains: As a seller, you may be subject to capital gains tax on the profit made from the sale of shares. It’s essential to consult with a tax adviser to understand any tax implications and plan accordingly.
  4. Deal completion: If the agreement is not properly drafted or the due diligence process has not been thorough, there may be issues that arise during deal completion, which can lead to disputes between the parties involved or even the termination of the agreement.

By understanding these risk factors and addressing them appropriately in the share sale and purchase agreement, you can ensure a smoother transaction process and protect your interests in the sale business purchase of shares.

Asset Purchase Agreement Specifics

Buying a Business’ Assets

In an asset purchase agreement, you as the buyer acquire specific assets and liabilities of the business you’re looking to purchase, rather than acquiring the business premises entire company through a share purchase agreement. In this scenario, you have the flexibility to select the assets and liabilities or entire business you wish to acquire, subject to negotiation with the seller. The seller retains ownership of any unpurchased assets or liabilities.

Intellectual Property and Leases

When entering into an asset purchase agreement, it’s essential to carefully consider the transfer of intellectual property rights and lease agreements for premises or equipment. This may include:

  • Trademarks, patents, copyrights, and domain names
  • Lease agreements for real estate and equipment
  • Software or technology licences

During the negotiation director approval process, ensure that all relevant licences and contracts are transferred, including any necessary consents or permissions from third parties.

Risk Factors in Asset Purchase Agreement

While an asset purchase agreement generally reduces risks for the buyer, you should still be aware of potential pitfalls, such as:

  • Employee considerations: Depending on the jurisdiction, you may be required to assume responsibilities for some or all of the existing employees. Understanding your obligations, including redundancy payments or potential employment disputes, is crucial.
  • Contingent liabilities: Ensure that the agreement explicitly states the liabilities you’re assuming and the ones you’re not. An effective due diligence process can help you uncover potential hidden liabilities.
  • Warranties and indemnities: Like in any agreement, warranties and indemnities can protect you from potential losses stemming from breaches of the agreement or inaccuracies in the representations made by the seller. Make sure to negotiate and include suitable warranties and indemnities in the asset purchase agreement.

By having a thorough understanding of asset purchase agreements, you not only ensure a smooth transaction, but also protect yourself from risks and potential liabilities.

Financial Considerations in Purchase Agreements

Tax Implications

When deciding between a share purchase agreement and a purchase vs an asset purchase agreement, you should consider the tax implications of each. In a share purchase, the buyer acquires the shares of the company, which includes all assets, liabilities, and tax history. You may inherit any historical tax liabilities or potential tax advantages of the target company.

On the other hand, in an asset purchase, you are only acquiring specific assets and liabilities. This allows you to potentially structure the transaction in a tax-efficient manner. You can allocate the purchase price to assets that offer the most favourable tax treatment. For instance, allocating more of the price to depreciable assets such as equipment can give you tax-saving opportunities. In contrast, allocating more of the price to non-depreciable assets like land can limit your tax benefits.

Price Negotiation

During the negotiation process, the parties must agree on the purchase price and other financial considerations. In a share purchase, the price determination is generally simpler, as it is based on the value of the shares being acquired. You need to take into account the company’s financial position, including its debts and profitability. Due diligence plays a significant role in understanding the company’s value and risks associated with its tax liabilities or potential tax consequences.

In an asset purchase, price negotiation can be more complex, as you are determining the value of individual assets and liabilities being transferred. It gives you greater flexibility in negotiating the price for each asset class based on their condition, useful life, or other factors. You may need to involve financial and legal advisors to help with the valuation of assets and to structure the transaction in a way that maximizes your financial interests.

As you enter an agreement, whether it be a stock sale, share purchase or an asset purchase, keep in mind the tax implications and price negotiation aspects to ensure a fair and beneficial arrangement for your needs.

Due Diligence in Purchase Agreements

When considering a transaction involving share purchase agreements or asset purchase agreements, due diligence plays a crucial role, allowing both the buyer and seller to make informed decisions. This section will cover the perspectives of both buyers and sellers, with brief explanations of relevant aspects related to due diligence in both types of transactions.

Buyer’s Perspective

From the buyer’s perspective, the focus of due diligence will vary depending on the type of transaction. In an asset purchase transaction, the main priority would be on the assets themselves, examining their condition, value, and potential future performance. On the other hand, in a share purchase transaction, the buyer will need to evaluate corporate matters in addition to the assets. The process will involve in-depth investigations to ensure accurate accounts and uncover any undiscovered liabilities. Key aspects to consider include:

  • The company’s financial stability, including cash flow, profitability, and credit ratings
  • Compliance with relevant laws, regulations, and industry standards
  • Employee contracts, benefit plans, and other human resource-related matters
  • Intellectual property, such as patents, trademarks, and copyrights

Seller’s Perspective

For the seller, providing comprehensive and accurate information is essential in facilitating a smooth transaction. In a share purchase agreement, the seller must ensure their accounts reflect the true state of affairs, as they may be held liable for any discrepancies after the transaction. In an asset purchase agreement, a seller needs to consider the valuation of assets involved and provide adequate records supporting their claims. Some tasks the seller may undertake include:

  • Preparing up-to-date financial statements and providing access to financial records
  • Providing details on liabilities, such as outstanding debts, pending legal issues, and compensation claims
  • Ensuring proper documentation for properties, licences, and contracts to avoid transfer-related issues
  • Presenting information in a transparent and organised manner, such as through a data room or an online data repository

In both types of transactions, it’s important for the parties involved to exercise due diligence to minimise risk, ensure transparency, and make informed decisions. Adequate focus on due diligence can serve as a strong foundation for a successful transaction.

Impact on Employees and Third Parties

Employment Rights

When it comes to an asset purchase agreement, you need to be aware that employees may not automatically transfer to the buyer. They could be left with the selling the company’s assets, or their contracts may need to be renegotiated with the buyer. This could result in potential changes to their terms and conditions of employment. On the other hand, in a share purchase agreement, employees’ rights are likely to remain the same, as the buyer acquires the shares of the target company and all its existing contracts and obligations.

It is crucial that you consider the legal implications when dealing with the transfer of employees, such as:

  • Informing and consulting employees about the sale;
  • Ensuring that employment contracts are not breached during the transition;
  • Assessing any potential redundancy situations.

Third Party Obligations

In a share purchase agreement, since the buyer acquires the entire company along with its shares, all contracts with third parties, including suppliers, remain in place. This means that the company remain ongoing relationships with suppliers are generally not affected by the sale of certain assets.

Conversely, when it comes to an asset purchase agreement, certain contracts may need to be renegotiated or transferred to the buyer. Third parties, such as suppliers, could be affected by the transaction. Contracts will need to be reviewed and novated, even if they are the same terms, and conditions, to ensure continuity of business operations. This may require obtaining the consent of third parties, which is important when dealing with suppliers, customers, and any other important contractual relationships.

Overall, your approach to both employment rights and third party obligations will depend on the type of transaction being conducted, either a share purchase agreement or an asset purchase agreement. Ensure that all legal requirements are met and that any potential issues are anticipated and addressed to protect the interests of employees and any third party consent or parties.

Mitigating Risks and Liabilities

Indemnities and Warranties

In both share purchase agreements and asset purchase agreements, it’s important to include indemnities and warranties to reduce potential risks and liabilities. Indemnities aim to transfer the risk of liability arising from a particular matter to the seller. This means that if a liability arises after the transaction, the seller is responsible for it, even if the issue was unknown at the time of the first asset sale itself.

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Warranties, on the other hand, are statements made by the seller about the business, assets, or shares being sold. If a warranty statement proves to be untrue or inaccurate, and the buyer suffers a loss as a result, the seller may be liable for damages. Including warranties in an agreement can help protect the other buyer’s exposure by giving them a basis for claiming damages if necessary.

Make sure to negotiate and carefully review the indemnities and warranties in your agreement, as they play a crucial role in mitigating risks and liabilities for both parties involved.

Control and Continuity Issues

Control and continuity are two key concerns when entering into a share or asset purchase agreement. In a share purchase, the buyer acquires the entire company, including its possible liabilities and obligations. Continuity is maintained as the legal entity remains the same, and the buyer inherits both its strengths and weaknesses. To mitigate risks, you should conduct thorough due diligence to understand the company and be aware of any potential issues.

In an asset purchase, you are buying specific assets and liabilities, allowing for more control over what you acquire and exclude from the transaction. Continuity may be less straightforward in this scenario, as the buyer takes over some elements of the business while leaving others behind. If continuity is a concern, carefully assess the specific assets being purchased, and consider how operational processes and contracts may need to be transferred to maintain business continuity.

Ultimately, the choice between a share purchase agreement or asset purchase agreement depends on your unique situation and goals. Remember to assess risk factors carefully, including indemnities, warranties, control, and continuity, to minimise liabilities and ensure a more seamless transaction.

Conclusion

In summary, when comparing share purchase agreements and asset purchase agreements, there are important distinctions between the two that you should consider. A share purchase agreement involves the transfer of ownership of limited company by selling shares, whereas an asset purchase agreement relates to the sale of specific assets and liabilities of a business.

As a buyer, an asset purchase may be more advantageous as it allows you to choose specific assets, avoid exposure to unknown liabilities, and potentially obtain favourable tax treatment. On the other hand, a share purchase can be simpler to execute and might be more desirable than asset deals for a seller, as they can entirely transfer their interest in the business, including existing contracts and customers, with fewer complications.

Ultimately, the best choice between a share purchase and an asset purchase will depend on your individual circumstances and objectives. You should weigh the pros and cons of each, taking into account factors such as tax implications, liability exposure, and desired level of control over the acquired business. It is also important to seek professional advice from legal and financial experts to ensure a smooth transaction and avoid any potential pitfalls.

Frequently Asked Questions

What are the main advantages and disadvantages of each type of agreement?

Share Purchase Agreement

Advantages:

  • Simpler transaction as all assets, liabilities, and employees transfer automatically
  • More favourable for sellers as it typically leads to a cleaner break from the business

Disadvantages:

  • Buyer assumes all liabilities, including potential hidden ones
  • Due diligence process may be more complex and costly

Asset Purchase Agreement

Advantages:

  • Buyer can choose which assets and liabilities to acquire
  • Usually better for buyers as it offers more protection against hidden risks

Disadvantages:

  • Can be more complicated and time-consuming as assets need to be individually identified and transferred
  • Employee transfer process can be more complex

How do tax implications differ between share purchase and asset purchase agreements?

In a share purchase agreement, the tax implications are generally more favourable for the seller, as capital gains tax or a lower rate of tax may apply. For the buyer, there is lower tax liability there are no substantial tax incentives.

In an asset purchase agreement, the buyer benefits from being able to allocate the purchase price among different acquired assets, which may allow for more advantageous tax depreciation. The seller may face a higher tax burden if the proceeds of asset deal are taxed as ordinary income.

What impact do both agreements have on liabilities and risk?

In a share purchase agreement, the buyer assumes all existing and future liabilities and potential liabilities of the company. This can include any hidden liabilities that may not be apparent during the due diligence process.

In an asset purchase agreement, the buyer chooses which specific assets and liabilities to assume. This insulates the buyer from risks associated with the seller company’s historical liabilities selected assets.

How does the transfer of obligations vary in each type of agreement?

In a share purchase agreement, the transfer of obligations is generally automatic and does not require separate documentation or agreements.

In an asset purchase agreement, each asset and contractual obligation must be individually transferred. This may require obtaining consent from third parties, like creditors or customers, and executing separate transfer documents.

What factors should be considered when deciding between share purchase or asset purchase?

You should consider the following factors:

  • Tax implications for both buyer and seller
  • Level of risk and liability assumption
  • Complexity of transferring assets, liabilities, and obligations
  • Impact on employees and their rights
  • Overall transaction costs, including legal and administrative expenses

How is the employee transfer process handled in both cases?

In a share purchase agreement, employees are automatically transferred along with the company. the employees remain contracted. Their contracts and employment rights remain unchanged.

In an asset purchase agreement, the employee transfer process may be more complex. You may need to comply with certain regulations, obtain employee consent, or provide new contracts. Additionally, some employees may not be retained, leading to possible redundancies.

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Disclaimer: This document has been prepared for informational purposes only and should not be construed as legal or financial advice. You should always seek independent professional advice and not rely on the content of this document as every individual circumstance is unique. Additionally, this document is not intended to prejudge the legal, financial or tax position of any person.

Disclaimer: This document has been prepared for informational purposes only and should not be construed as legal or financial advice. You should always seek independent professional advice and not rely on the content of this document as every individual circumstance is unique. Additionally, this document is not intended to prejudge the legal, financial or tax position of any person.

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Get the specialist support you need

Whether you require specialised knowledge for your business or personal affairs, Gaffney Zoppi can support you.