无论您是在买卖企业，很少有人会不同意这一过程是您一生中最重要，最令人振奋和激动人心的经历之一。对于买方而言，经常获得对某项业务的兴趣是“once in lifetime” opportunity to become your own boss and to reap potentially unlimited rewards directly related to your own effort and ability. For the 卖方, building a successful company and then selling it for a hefty price is the culmination of many years of toil and struggle and presents the opportunity to pass along your legacy and live comfortably thereafter.
双方的首要考虑之一是确定交易是否将成为“stock sale” or an “asset sale.” In a “stock sale”，则企业所有者出售其在业务实体中的所有权权益，以股份，有限责任公司会员单位或合伙权益的形式表示。在本文中，我们将所有这些类型的权益的出售统称为“stock sale.” Thus, the “seller”是股票的所有者。一种“stock sale”独资经营是不可能的，因为除了拥有人个人（直接拥有企业资产）之外，没有其他实体。
An “asset sale” occurs when the owner of the business retains his or her ownership interest in the company entity and the company itself sells only selected assets and liabilities of the company. Except for sole proprietorships, the 卖方 is not the business owner but is the company itself. The owners of the selling company, which has disposed of at least a portion of its assets and liabilities, remain the same after the transaction.
In a 股票销售, the business assets remain in the original entity or company. All assets, liabilities and ownership equity of the company follow the ownership of stock or units of the company. The book or tax values of individual assets, both tangible and intangible, will be driven by values carried on the company’s financial statements prior to the sale and may generally be adjusted only upon adequate empirical support or expert opinion. In a 股票销售, the purchase price establishes the buyer’的税基为利息或对公司的出资额。
A 股票销售 makes it simpler to describe the property which is the subject of the purchase in the purchase agreement. Instead of an extensive list of various assets or liabilities, the property being sold is “公司普通股的X股数量”， 例如。实际进行传输也更简单，通常只涉及在证书背面签名传输语言。
Unless the owner of the transferred shares is going to be another entity as opposed to an individual or individuals, the 股票销售 eliminates the need to create an additional business entity to actually own the business assets and operate the business. The ownership of the stock by another entity instead of an individual will likely impact the ultimate tax treatment of the transaction and subsequent business operations to the individual owner. In fact, ownership by another entity may not be allowed for certain types of tax entities such as Sub-chapter S corporations.
A 股票销售 is generally considered much riskier to the buyer than an “asset sale” and is therefore much less common than an 资产出售。 At least indirectly by ownership of the stock, the buyer is assuming all obligations and risks arising from the company’的先前操作。这可能包括来自多个领域的断言和未知的索赔，包括产品责任，过失，环境条件，违反法律和法规，劳工或就业责任，违反合同等等。甚至先前所有者对买方的赔偿也可能不足以保护买方’s investment.
股票销售尽职调查应包括仔细检查重要资产负债表帐户和核实重大金额，尤其是在公司 ’s financial statements are not audited. Accounts receivable should be analyzed for collectability, accounts payable to verify accruals or balances and inventory should be checked for accuracy. Balances and payment terms of long-term liabilities should be verified. An agreement for the purchase of stock usually also includes indemnification of the buyer by the 卖方 as to any unknown obligations or liabilities not specifically listed or accounted for.
A 股票销售 may require notice to or permission from other owners of the company, lenders, landlords or other third parties. The sale could in fact be an outright violation of third-party contracts. This should be investigated and any required permissions or waivers obtained.
Any personal guarantees by the stock 卖方 given to lenders, vendors or perhaps a landlord must be renegotiated to obtain release of the 卖方. As part of the due diligence process, the buyer may also wish to obtain acknowledgment of compliance with lease provisions from the landlord.
In an 资产出售, the buyer must create a new entity, unless operating as sole proprietor. This new entity may be the actual, named buyer in the transaction or the 卖方 may transfer assets and liabilities into one or more entities after closing. This decision is most often driven by tax considerations. Ultimate calculation of the buyer’公司和/或买方的税基’资本出资是由有形和无形资产的净公允价值减去债务后的总和得出的。
In an 资产出售, the company sells only selected, described assets, tangible or intangible, and the buyer assumes only selected, described liabilities. The amount paid for individual assets, especially intangibles, may be scrutinized by taxing authorities and the values allocated by the parties may have to be supported by empirical evidence or expert opinion, or both, to withstand the scrutiny of these taxing authorities. The value of intangible assets or “blue sky”每年可能需要对买方购买的产品进行分析和调整，这可能会导致大量账面/税收收入或损失。
The total purchase price in an 资产出售 is usually allocated by agreement between the parties to specific assets, tangible and intangible. This allocation may have different and significant tax impact upon the 卖方 and buyer and this sometimes creates adversity between the parties. “Titled”资产必须分别以适当的契据，注册，所有权，销售票据或其他转让文件单独转让。
The 资产出售 also requires that the buyer must itself hire employees of the selling company that it needs to continue operations. The buyer may wish to make the entire agreement contingent on its ability to secure employment contracts with key employees. The 卖方 may wish to specify that it be relieved of any potential liability to these “acquired’ employees.
Each liability assumed by the buyer should be analyzed to assure consent and acknowledgement of third party creditors if necessary, to remove the 卖方 from liability and to replace the 卖方 with the buyer as a party. The asset purchase agreement usually also requires the buyer’s indemnification of the 卖方 from liability for obligations not specifically assumed.
阅读有关的文章 继任者责任-即使在资产购买中 有关可能在纯粹资产购买中附加到购买者的未知负债的更多信息。
The agreement may include the 卖方’不得在特定时间和有限的地理区域内与买方竞争。也可以协商保密或不征求员工的协议。该协议应说明当事方’对分配给购买价格的部分或这些盟约出于税收目的的理解。