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WHATS THE DIFFERENCE BETWEEN A SHARE SALE AND A BUSINESS SALE?

21 March 2023

There are essentially two ways of selling a business.

The first way, is to sell shares in the company that owns the business (or units if the entity that owns the business is a unit trust). So for example, your business is operated by Blue Sky Pty Ltd you can sell all the shares in Blue Sky Pty Ltd to the Buyer, and the Buyer will own everything that Blue Sky Pty Ltd owns, including the business. There is a risk here though, for the Buyer, that they will also acquire any skeletons in the closet of Blue Sky Pty Ltd. For example, there may be a claim against Blue Sky Pty Ltd that the Buyer was not aware of, or debts that the Buyer was not aware of. There are a number of reasons why it may be best to acquire shares in a company, however typically a business is not sold by way of a share sale.

The second and most common way to acquire a business is by way of a business sale agreement. The Seller, Blue Sky Pty Ltd (for example) sells the business pursuant to a contract to the Buyer. Using this method, the Buyer acquires only that which is set out in the Business Sale Agreement (which is why the contract is so important) and does not inherit any liabilities of the Seller company (other than those set out in the Business Sale Agreement).

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