M&A and business exits: Compliance & filing implications for the seller

Selling a business- either in a merger, an acquisition, selling assets, or transferring shares attracts a broad spectrum of compliance requirements. To sellers, there are tax leakages, feuds, and delays in closing deals as well as post-sale penalties that may result in failure by the seller in liabilities management.

 

This guide contains the most important compliance/regulation/taxation/documentary requirements that a seller should be ready to cope with both prior to and after an M&A deal or business exit.

 

Pre-Transaction Compliance: Preparing the Business for Sale

 

Prior to going through due diligence or signing a term sheet, sellers should make sure that the company is compliance ready. Buyers will do intense due diligence; otherwise any loopholes that will be found will hurt the valuation.

 

• Business Housekeeping and Legal Compliance

1. Make sure that all the statutory filings (annual returns, board resolutions, minutes, registers) are updated.

2. Ensure that the business is not on bad terms with the authorities.

3. Maintain shareholding, cap tabular, option, and ESOP records.

4. Validate director KYC, appointment/resignation records, and compliance with corporate governance rules.

• Contract & Legal Documentation Review

1. Check customer contracts, vendor contracts, alliances, distributor contracts.

2. Identify restrictive clauses such as change-of-control, assignment, or termination triggers.

3. Assign IP appropriately to the company and it should include:

• software code ownership

• trademark registration

• patents, copyrights

4. Verify any pending legal disputes or litigation exposure.

• Financial & Accounting Compliance

1. Make audited financial statements current.

2. Balance balance sheets, aged and current liabilities.

3. Determine off-balance sheet liabilities.

4. Ready management accounts required in buyer valuation.

• Industry-Specific Licenses

1. Reissue business licenses, permits, certifications.

2. Identify licenses that are non-transferable and may impact deal structure.

 

Compliance During the M&A Process

 

In the transaction, sellers are subject to transactional requirements in terms of transparency and disclosures, regulatory and documentation requirements.

 

Due Diligence Support

 

• corporate documents

• financial statements

• tax records

• compliance certificates

• litigation history

• HR files, employee contracts

• IP documentation

• environmental or industry-specific compliance records

 

Regulatory Approvals

 

Depending on jurisdiction and transaction size, sellers may need approvals such as:

 

• Competition/Antitrust Approval

1. Necessary when the size of a deal surpasses some specified limits or affects the market competition.

• Sectoral Regulators

1. financial regulators (banking, insurance, fintech)

2. telecom authorities

3. energy regulators

4. regulating health care organizations

5. environmental agencies

• Foreign Investment Approvals

1. In case the buyer is a foreigner then the sellers might require FDI approvals or reporting.

• Stock Exchange and Securities Regulator (Listed companies)

1. disclosure obligations

2. submission of event-based reports.

3. shareholder notifications

 

Shareholder & Board Approvals

 

Sellers must secure:

 

• board resolutions

• shareholder resolutions

• special approvals for major decisions (e.g., sale of undertaking, change of control)

 

Minority rights over the shareholders need to be respected, such as:

 

• tag-along / drag-along rights

• pre-emptive rights

• ROFR/ROFO obligations

 

Representations, Warranties, and Indemnities

 

Sellers need to know the legal aspect of:

 

• business warranties

• tax warranties

• IP warranties

• operational warranties

• environmental warranties

 

Sellers can also be obliged to:

 

• indemnify against pre-closing liabilities.

• accept escrow or hold back arrangements.

• engage in earn-out arrangements.

 

Tax Compliance & Filing Implications for Sellers

 

One of the most sensitive issues of an M&A transaction is tax compliance.

 

• Capital Gains Tax

1. capital of sale of shares or capital of sale of assets.

2. short-term vs long-term gain

3. applicability of exemptions or indexation

4. relief available under tax treaties (for cross-border deals)

• Indirect Tax Implications

1. The GST/VAT is possible in the case of transfers of assets.

2. Adjustments of input tax credit may be necessary.

3. Share or assets transfer stamp duties.

4. Registration fees may be attracted by transfer of real estate.

• Transfer Pricing

1. file TP documentation

2. maintain arm’s-length compliance

• Withholding Tax Obligations

1. correct withholding tax rate

2. tax residency certificates (for cross-border sellers)

3. relief in the case of the treaties on double taxation

• Tax Clearance Certificate

1. Tax compliant certificates

2. transfer with clearance of taxes

3. at least filings that there were no outstanding liabilities

 

Post-Closing Compliance Obligations

 

Even after the deal closes, sellers often have compliance responsibilities.

 

• Filing of Deal Documents

1. file share transfer forms

2. update company registers

3. notify corporate regulators

4. file updated shareholder information

5. update beneficial ownership records

• Updating Government & Regulatory Registrations

1. change of management filings

2. transfer or surrender of licenses

3. regulatory reporting of change of control

• Tax Filings After the Exit

1. declare capital gains

2. complete year-end tax filings

3. submit withholding/credit claims

4. address any tax audit or scrutiny triggered by the exit

• Employment & HR Compliance

1. settle dues

2. make severance or retrenchment payments

3. ensure compliance with labor laws

4. issue relieving/experience letters

5. transfer PF/retirement benefits as applicable

 

Compliance Risks Sellers Must Avoid

 

Sellers should be aware of common pitfalls:

 

• Misrepresentation in due diligence

• Non-disclosure of liabilities

• Incorrect tax calculation

• Failure to obtain regulatory approvals

• Data privacy violations during information transfer

• Improper handling of employee rights

• Non-adherence to post-closing covenants

 

Penalties can include:

 

• financial compensation

• indemnity claims

• Litigation

• contract termination

• personal liability for directors

 

Conclusion

 

The processes involved in M&A and business exits are very complicated and sellers are subjected to huge compliance and filing requirements. The correct preparation, accuracy as per the law, clear records, and filing at the appropriate time not only facilitate a smooth closing, but also cushion the seller against future litigation, as well as exposing the seller to financial loss. The compliance process is well organized which increases credibility, contributes to increased valuation, and minimization of liabilities after a deal.

 

Disclaimer

 

The information provided in this blog is purely for general informational purposes only. While every effort has been made to ensure the accuracy, reliability and completeness of the content presented, we make no representations or warranties of any kind, express or implied, for the same. 

 

We expressly disclaim any and all liability for any loss, damage or injury arising from or in connection with the use of or reliance on this information. This includes, but is not limited to, any direct, indirect, incidental, consequential or punitive damage.

Further, we reserve the right to make changes to the content at any time without prior notice. For specific advice tailored to your situation, we request you to get in touch with us.