Introduction
In the age of start-ups and exponential advances in technology, an ever increasing number of people seem to be taking up the entrepreneurship mantle. However, starting a new business from scratch is not always as easy as it sounds as the challenges are numerous. One alternative to starting a new business that is increasingly being looked into by would-be entrepreneurs is buying (into) an existing business.
One of the main benefits of investing in the purchase of an established business is the fact that it eliminates, or at least reduces some of the risks associated with starting a new business. Having said that, while there are myriad types of businesses available for purchase there can be potential pitfalls that await a buyer who is not properly educated and knowledgable about the ins and outs of taking over an existing business.
So, before venturing into the world of buying a business, be it a Limited Liability Company (LLC,) a Corporation or any other form or type of business entity, you should be aware that there are many things to look out for and be knowledgable about, to ensure that your decision ends up being a positive and beneficial one.
Therefore, take heed of the following nuggets of advice.
Don’t buy Businesses, buy Assets
Any business attorney worth their salt will always advise you to opt to purchase the assets of a company, rather than the shares of the company. There are a number of reasons for this. For one, it generally gives you better tax treatment as the basis of the sales tax you pay will be calculated on the price of the assets in their depreciated or used state, rather than what the seller originally paid for them. In other words, it lowers the amount of sales tax you get to pay.
Additionally, it also means you avoid assuming the potential liabilities the corporate entity might have, including liabilities that the seller might not even know they have at that point in time.
Once the asset sale is complete, the most likely option is that you would then use your own company to take over these assets and run your business. This, of course, means that you will either have an existing corporate entity or that you will be creating a new one. Depending on the type of business and other considerations, creating an LLC for this purpose is a good idea to achieve this objective.
Investigate the Accounts Payable and Receivable
When you buy an established business, chances are that some of the business’s customers will still owe the business some money by the sale date, or the date of the transfer of the business’s assets to you. In the same vein, the company might likewise owe money to other parties. It is, therefore, a good idea to agree with the seller who will be responsible for collecting and settling these debts.
Of course, if the business has larger accounts receivable than payable, then it might be favorable for you to include this in the asset purchase. If the vice versa is the case, then this consideration could potentially affect the asset sale price. It is however important that thorough research and due diligence is carried out on the business, including a thorough and in-depth look through their books and audited financial statements going back several years, if necessary with the help of an accountant. The findings of this investigation are what should determine whether or not to include the accounts receivable and payable as part of the asset sale.
Know your Premises Rights
Before you take over the assets of an existing business, consider what you are going to do with these assets once the acquisition is completed. For instance, are you going to continue running the business from the same premises as the previous owner? If so, does the seller have a written lease for the premises and is the landlord likely to allow for a lease transfer? Are the terms of the lease even favorable? These are just some of the questions that you are going to need answers to.
One tactic that you should consider adopting is to make it a condition of your purchase of the business’s assets, that the lease is transferable and favorable to you. This and other terms of the purchase will no doubt be stipulated in your offer to purchase, which no doubt should be properly drafted by an experienced business lawyer.
What Contract Exposures are There?
Another important point to consider is the contracts to which the business might be a party to, and the risks and benefits involved with those contracts. An investigation into these contracts is one significant component of what a “due diligence investigation” entails, and should be one of the key prerequisites any well thought-out business asset purchase should consist of.
Cherish Institutional Knowledge
There are many questions to ask oneself when seeking to buy a business. However, without a doubt, one of the greatest assets in an established business is its people. Often, employees who have been around for some years will have invaluable knowledge of the business, its market, competitors, and most importantly, its clients. Make sure you get to know and build trust with the business’s employees. Many people who purchase a business will often retain the services of the previous owner for a predetermined period, as an employee or consultant, to ensure a smooth transition of skills, knowledge and institutional culture.
Expert advice is usually the way to go
When in doubt, it is always best to consult people with relevant expertise. If you are unsure about how to go about purchasing an existing business, some of the resources that will prove invaluable to you are things like a business broker, an accountant, someone who has experience buying a business, a small business attorney or even the ever helpful Messers Google or Bing, to provide certain information about the company, the industry, the seller and several other such useful information.
While some of these resources might come at a cost, these costs will usually be much cheaper than completing the asset purchase without them only to discover some questionable things about the items you have purchased,
Even if you are looking to buy a small business, you can be assured there will be no shortage of paperwork, and only an expert attorney will be able to apprise you of the legal minutia at play. While it may bring an extra cost, a good attorney will save you plenty of time, money and headaches in the long run. Be aware of the fact that challenges exist not just in the process of buying your business, but in managing it after the purchase too.
Bio
Kanayo Okwuraiwe is a startup founder, an incurable entrepreneur, a digital marketing professional, a chess lover, a brother, a son, a friend and more. His latest project has seen him create a digital marketing agency called Telligent Marketing that provides law firm SEO services to help lawyers grow their law practices.