Important legal considerations in a management buyout

Management-buyout-MBO.jpg.jpg

So, you are part of a management team within a limited company and contemplating acquiring the company from its current owners. This is known as a ‘management buyout’ (MBO).

Solicitor Justine Harris Hughes from WHN’s corporate and commercial team outlines the process and important considerations when undertaking an MBO, to ensure the process goes smoothly and meets your expectations.

If you are considering undertaking an MBO as a management team, a comprehensive understanding of the business offers you a greater advantage. Having an existing relationship with the current owners, suppliers and customers of the business can translate into a smoother and quicker transaction than where a business purchase is entirely ‘arms-length’. However, that is by no means guaranteed and it is essential not to inadvertently ‘short-cut’ key stages of the process.

Before the legal work begins, several key matters need to be addressed. If you are undertaking the MBO as a team, is the whole team sufficiently motivated and skilled to achieve the growth and development objectives behind the MBO? Will you all work well together as a team, through the challenges that will undoubtedly come?

If you are embarking on the venture as an individual, are you confident that the rest of the team will come together to support you in your ambitions?

Once you are confident that an MBO is the right option for you (individually or as a team) there is a range of legal process matters to consider.

Structuring the deal

The first, fundamental, decision is how the management buyout will be structured – ideally, as far as possible, to meet the (sometimes conflicting) needs and expectations of all parties involved.

In terms of the method by which the business will be acquired, the two main options are:

  • A share purchase, where the out-going owners sell their shares in the company to the buyer
  • An asset purchase, where the limited company itself sells all the assets of the business as a going concern to the buyer.
  • Typically, an MBO will be a share purchase, where the management team will incorporate a new limited company in which they all have an equal shareholding.

This ‘new company’ will buy all the shares in the business being acquired – in the process acquiring all the assets, and crucially also all the liabilities, of the company being acquired.

However, this is not the only option. Each individual team member could buy a certain percentage of the shares being sold, or if the management team already hold some shares, there is the option (subject to certain criteria) for the company itself to buy-back shares from the existing owners, leaving only the management team as the remaining shareholders after completion.

Alternatively, the MBO could be undertaken as an asset purchase – for example where only one part of a business is to be sold, giving the management team control over the specific assets and liabilities they will acquire.

The structure of an MBO will also be influenced by considerations such as:

  • The differing tax implications for the parties with each approach
    - The obligations and liabilities within the company being acquired
    - The differing requirements for any third-party consents
    - Funding arrangements
  • If there is deferred consideration, what security (if any) will be required.
    The negotiating strength of the parties will also come into play and balancing the sometimes-competing interests will be vital for the overall success of the transaction.

Due diligence

A reduced need for due diligence may be required for an MBO due to the existing knowledge of the business that the management team has. Nevertheless, it is essential to consider the areas in which the team may lack the required knowledge, and to undertake a sufficiently detailed due diligence exercise.

This is particularly important when carrying out a share purchase, where the buyer will take ownership of the company not only with the benefit of its assets and rights, but crucially also subject to all its liabilities and obligations.

Legal documentation

Comprehensive, well-drafted documentation that addresses all the issues and concerns of the parties is essential to a successful and seamless MBO process. Key elements of the main contract documentation will include:

Financial matters – including the price and payment terms, and provisions for post-completion accounts.
Warranties – these are a series of statements of fact about the company from the sellers to the buyers, to give contractual assurance, and usually cover all aspects of the company’s affairs.  If a warranty is breached, a buyer may make a claim for their financial losses incurred as a result.
Indemnities – these also provide contract assurance to the buyers, but in this case by requiring the sellers of the company to compensate the buyer on a pound for pound basis for specific ongoing or future liabilities in the company.
Restrictive covenants – In many cases the out-going owners will be retiring. However, that is not always the case and negotiating restrictive covenants may be required.

Ancillary documents required for an MBO

In addition, a full suite of ancillary documents will need to be put in place to address such matters as:

  • Contracts for service or employment contracts if the out-going owners are intending to work for the company after completion
  • Resignation of the owners as directors, and consent to the appointment of new directors
  • Notifications from all parties regarding the ‘persons with significant control’
    Waivers of pre-emption rights
  • Stock transfer forms (in the case of a share deal) and indemnities for any share certificates the owners no longer hold
  • Powers of attorney
  • Board meeting minutes for the company being sold, and the buyer company, to authorise all aspects of the transaction and documentation.

Keeping the business going during an MBO

Until the deal is done, the management team who may potentially become the owners of the business are first and foremost, still employees.

Transitioning from management to business owners is not always straightforward, and a poorly managed or abandoned MBO can adversely affect business operations and relationships.

The MBO process can be prolonged and demanding, placing considerable pressure on management teams, and the other employees within the business.

With an asset purchase, there are also the requirements of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to consider for all employees, and the potentially unsettling effects such a process can have on the whole workforce.

Post-completion of an MBO

Once complete, it is essential to ensure that all post-completion matters are promptly dealt with – including filing all relevant forms and documents at Companies House and updating all the company’s statutory books.

Other changes agreed during the process will also need to be implemented straight away, such as new bank mandates and informing clients and suppliers.

Justine specialises in corporate matters including company incorporation, share sales and buybacks, and corporate property work.  

If you are an individual or part of a business management team considering a management buyout and would like to discuss the above in more detail, please contact Justine on 0161 761 4611 or by email at [email protected]

Enjoyed this? Read more from Woodcocks Haworth & Nuttall Solicitors

Latest news

1

Lancashire emerges as key player in UK's Defence and Tech Sector Mo Isap Chair Of The Lancashire Business Board Nick Miles National Cyber Force Deputy Director For Samlesbury Annette Weekes Representative Of The NWRDSC

Lancashire emerges as key player in UK's Defence and Tech Sector

03 Jul 2025

2

Report shows impact of BAE Systems in Lancashire BAE Systems Radar

Report shows impact of BAE Systems in Lancashire

02 Jul 2025

3

Three weekly domestic waste collection considered in plans Waste recycling Blackpool

Three weekly domestic waste collection considered in plans

01 Jul 2025

4

Graham Engineering confirms sale to a2e Industries Graham Engineering

Graham Engineering confirms sale to a2e Industries

01 Jul 2025

5

Training 2000 celebrates 'Good' rating by Ofsted Training 2000

Training 2000 celebrates 'Good' rating by Ofsted

01 Jul 2025

Background image for hub sign up block

LBV Hub

Leverage Lancashire Business View platforms

Post your news
Post your events
Post your offers
Build your network
Improve your SEO
Gain coverage in the magazine
Sign-up
Events
LBV123 July/August Launch Event
Lancashire Business View magazine launch
Networking
16 Jul 2025

LBV123 July/August Launch Event

Burnley

08:30 - 10:30

Lancashire Built Environment Conference 2025
BEC 315 X 315 Px
Networking
25 Sep 2025

Lancashire Built Environment Conference 2025

Blackpool Football Club, Blackpool, FY1 6HX

08:30 - 13:00

CMI Level 5 Management and Leadership Course
UCLanAerialCampus.jpg.jpg
LBV Hub Seminars
21 Feb 2025 - 21 Feb 2026

CMI Level 5 Management and Leadership Course

Preston Campus, Preston , PR1 2HE

09:00 - 17:00

CMI Level 5 Project Management Course
UCLanAerialCampus.jpg.jpg
LBV Hub Seminars
21 Feb 2025 - 21 Feb 2026

CMI Level 5 Project Management Course

Preston Campus, Preston, PR1 2HE

08:00 - 17:00

The Marketing Metrics that Matter – July 4
LBV Hub Seminars
04 Jul 2025 - 04 Jul 2025

The Marketing Metrics that Matter – July 4

Door4 Office, Burnley Wharf, Burnley, BB11 1JG

08:30 - 11:00

Tri-Site Survey Equipment Showcase
unnamed (2).jpg.jpg
LBV Hub Seminars
09 Jul 2025 - 09 Jul 2025

Tri-Site Survey Equipment Showcase

Crow Wood Hotel, Burnley, BB12 0RT

09:30 - 16:00

Choose Chorley for Business - Talent Reimagined Business Breakfast
talentreimaginedbb.png.png
LBV Hub Seminars
10 Jul 2025 - 10 Jul 2025

Choose Chorley for Business - Talent Reimagined Business Breakfast

Strawberry Fields Digital Hub, Chorley, PR71PS

08:00 - 10:30

Blackburn Cathedral hosts Champagne and Diamonds Event with Ainsworth Jewellers
Champagne-Jewellery 10 07 25_page-0001.jpg.jpg
LBV Hub Awards
10 Jul 2025 - 10 Jul 2025

Blackburn Cathedral hosts Champagne and Diamonds Event with Ainsworth Jewellers

Blackburn Cathedral, Blackburn, BB1 5AA

18:00 - 20:30

Shaping Preston's future by remembering its past
1750160034867.png.png
LBV Hub Networking
16 Jul 2025 - 16 Jul 2025

Shaping Preston's future by remembering its past

Society1, Coworking Space, Preston, PR1 3LT

18:00 - 20:30

Chamber Summer BBQ
LBV Hub Social
17 Jul 2025 - 17 Jul 2025

Chamber Summer BBQ

The Borough, Dalton Square, Lancaster, LA1 1PP

17:30 - 20:00

Preston Tech Connection: Web3 is Dead. Or is It?
July Longer Banner.jpg.jpg
LBV Hub Networking
29 Jul 2025 - 29 Jul 2025

Preston Tech Connection: Web3 is Dead. Or is It?

Society1, Coworking Space, Preston, PR1 3LT

18:00 - 19:30

Preston Freelancer Meet-Up: July
Longer July Banner.jpg.jpg
LBV Hub Networking
31 Jul 2025 - 31 Jul 2025

Preston Freelancer Meet-Up: July

Society1, Coworking Space, Preston, PR1 3LT

10:00 - 11:30

Advertise with us

Reaching 50,000 members, our print, digital and event platforms offer a fantastic way to raise your business profile and help you grow.

Find out more LBV122 Online Graphic
Subscribe now

Weekly news bulletin