The Business Sale Agreement is a crucial document used in South African business transactions when one entity wishes to sell its business operations to another. This comprehensive agreement is essential for transactions governed by South African law and must comply with various legislative requirements including the Companies Act 71 of 2008, Labour Relations Act, and tax legislation. The document details all aspects of the business sale including assets, liabilities, employees, contracts, and intellectual property. It provides protection for both parties through warranties, representations, and indemnities, while ensuring compliance with South African regulatory requirements such as B-BBEE considerations and, where applicable, Competition Commission approval. The agreement is particularly important as it serves as the primary record of the transaction terms and helps prevent future disputes between parties.
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1. Parties: Identification of the Seller and Purchaser, including registration numbers and registered addresses
2. Background: Context of the transaction, including brief description of the business and purpose of the agreement
3. Definitions and Interpretation: Definitions of key terms used throughout the agreement and rules of interpretation
4. Sale of Business: Core provision defining the sale and purchase of the business as a going concern
5. Purchase Price: Details of the purchase consideration, payment terms, and payment mechanisms
6. Conditions Precedent: Conditions that must be fulfilled before the agreement becomes fully effective
7. Due Diligence: Provisions relating to the purchaser's investigation of the business
8. Warranties and Representations: Seller's warranties about the business, its assets, and liabilities
9. Closing: Mechanics of the closing process, including deliverables and timing
10. Post-Closing Obligations: Obligations of parties after the closing date
11. Restraint of Trade: Restrictions on the seller's ability to compete with the business post-sale
12. Dispute Resolution: Procedures for handling disputes between parties
13. General Provisions: Standard legal provisions including notices, governing law, and jurisdiction
1. Employee Transfer Provisions: Details of employee transfers under Section 197 of the LRA - include when employees are being transferred
2. Intellectual Property: Specific provisions for IP transfer - include when the business owns significant IP
3. Property Lease Assignment: Provisions for assignment of leases - include when business premises are leased
4. Environmental Warranties: Special warranties regarding environmental compliance - include for businesses with environmental impact
5. Competition Commission Approval: Provisions regarding regulatory approval - include for larger transactions requiring competition approval
6. BEE Provisions: Specific provisions regarding BEE compliance and certification - include when relevant to industry sector
7. Earn-out Provisions: Structure for additional payments based on future performance - include when part of purchase price is performance-based
8. Third Party Consents: Provisions regarding obtaining necessary third party consents - include when material contracts require consent for transfer
1. Schedule 1: Assets: Detailed list of all assets included in the sale
2. Schedule 2: Excluded Assets: List of assets specifically excluded from the sale
3. Schedule 3: Contracts: List of all business contracts being transferred
4. Schedule 4: Employees: List of employees and their employment terms
5. Schedule 5: Intellectual Property: Details of all IP rights owned by the business
6. Schedule 6: Properties: Details of owned or leased properties
7. Schedule 7: Warranties: Detailed warranties given by the seller
8. Schedule 8: Closing Deliverables: List of all documents and items to be delivered at closing
9. Appendix A: Pro Forma Financial Statements: Financial statements showing the business position
10. Appendix B: Due Diligence Findings: Summary of key due diligence findings and disclosed matters
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