What are some of the basic legal factors to consider in selling or buying a small business?
Three Types of Small Business Sale
A small business can be sold by asset sale, stock sale, or merger, with asset sale being the normal vehicle of choice for many small businesses.
Business Sale – Canned versus Customized
Sometimes the sale of a small business is done via a basically canned process through a broker. In that case, a buyer and seller get a homogenized process that may or may not suit their legal needs. The documentation will be “standard” but contract terms will not be customized for the parties. Such documentation will cover minimum terms but little else.
Better by far in all but very small sales is to use customized deal documents prepared and reviewed by qualified business lawyers. Typically, a seller will get legal and accounting advice on how to structure the sale and will then work with a prospective buyer to get the basics of the deal documented in a term sheet or letter of intent. A term sheet, though not legally binding, provides a useful framework for moving forward. The parties may of course skip right to a formal contract instead.
Business Sale – The Purchase Agreement
The formal contract is a purchase agreement. It normally contains covenants or promises (“I will sell to you and you will buy from me x assets or x stock shares,” etc.), warranties and representations (“as seller, I warrant and represent that I have good title to what I am selling you and that there are no liens on it and no lawsuits against it,” etc.), and conditions to closing (“our deal with close only at such time as x, y, and z conditions are met,” as for example getting a landlord’s consent to a lease assignment).
The Escrow Process, Due Diligence, and Confidentiality Agreements
The contract is signed and an escrow normally established as a mechanism by which to get to a closing where the sale will consummate. Procedurally, such an escrow works much like that set up when a home is sold, except that (for example) instead of waiting for the results for a title search the parties may be waiting for a liquor license approval or some other condition pertaining to a business sale.
Due diligence is a critical part of this process, mostly on the part of the buyer. This is the process by which a buyer inspects the books and records of the business being sold and takes other steps to ensure that what is being sold is authentic and worth the value being paid. Lawyers and accountants typically assist with this process.
Detailed due diligence can be done before or after a formal contract signing or it can be done in stages – limited due diligence prior to signing a term sheet with detailed due diligence during the escrow period. Buyer satisfaction with due diligence is often a condition to closing.
Due diligence is not normally allowed until a buyer has signed a confidentiality agreement.
Common Traps and Pitfalls in the Sale of a Small Business
Many traps and pitfalls can arise during a sale. Sometimes a buyer will claim to want to buy a business while in fact scheming to gain access to key information that will be used competitively against the seller. A confidentiality agreement helps here but this may prove cold comfort to a seller stuck with a lawsuit. Be discerning in this area.
A serious seller risk is to take a carry-back loan with inadequate protections. Proper collateral (UCC and otherwise) is usually key to dealing with this in case of default.
Buyers normally face the greater risks. Unscrupulous sellers can play all sorts of tricks to make a deceptive sale. The nature and range of tricks used, or even mistakes inadvertently made, is vast and varied. This is often the major area of focus by attorneys and CPAs in shaping a seller’s representations and warranties and in handling due diligence.
From a buyer standpoint, the structure of the deal can affect liability risks: in a stock sale, a buyer will inherit the entire corporate history, good and bad, along with the purchase; in an asset sale, a buyer can normally limit the inherited liability risk considerably if not altogether.
Most businesses are sold with a premium placed on good will, consisting generally of the going concern value of having a particular customer base, a recognizable name, and so on. Most buyers then will want a non-compete agreement from the seller or, if the seller won’t give it, at least a non-solicitation agreement relating to existing customers.
Watch out especially for distress sales. Unless a distress sale proceeds by UCC foreclosure, or out of bankruptcy, any buyer of a business overwhelmed with debt can potentially inherit all or part of that debt even if the contract specifies that the buyer is not assuming any liabilities. Given the risks, distress sales are typically radioactive for a buyer.
Common Business Tax Issues
Another major issue is tax. A stock sale will have very different tax consequences from an asset sale, some favoring the seller and others the buyer.
For example, if a seller is a C-corp with low basis assets, any sale of its assets for a substantial sum would likely lead to a serious risk of a double-tax. Let us say corporate seller ABC Corp. sells its business for $10 million via asset sale and has a near-zero basis in its assets. This can happen, for example, where a manufacturing business with fully-depreciated assets is sold. Normally, that sale would constitute a taxable capital gain to the corporation. Given that this is a C-corp, however, the cash in the company would normally be taxed again as a dividend when distributed to shareholders.
In the same scenario, if the ABC Corp. shareholders sold 100% of the stock of the corporation to a buyer, then those shareholders would pay tax on a one-time capital gain and nothing more.
Such tax issues can get complex and should be handled with skilled professional help. A good business lawyer can suggest approaches that can mitigate double-tax problems. The point of this is not to attempt to address any given situation but rather to illustrate how tax can seriously affect the outcome depending on how a sale is structured.
By the same token, in an asset sale, the purchase price should be allocated among the assets being sold, and this will result in differing income and sales tax treatment, depending on the nature of the assets being sold and on the nature of the allocation. Such allocations should be done with the help of a qualified lawyer or CPA.
Don’t ignore these tax aspects of a business sale – they can sometimes be the most important part of a deal, and they are almost always important to some significant degree. In more sophisticated deals, tax-free deals are also done via reorganizations.
Estimated Transaction Costs
How about transactional costs? These can literally go all over the board. In a typical small business sale, a buyer should use as a rough estimate of total transaction costs a rule of 2% to 5% of the purchase price. This would be money spent on attorneys, accountants, and other professionals, as well as for escrow fees. Seller costs normally are lower, though they can be significant if broker fees are involved or if the deal is complex. In any case, don’t rely solely on any rule-of-thumb approach – use that for initial planning and then consult with your professionals to refine the estimates.
Work with a Qualified Business Attorney
This highlights some key issues connected with a small business sale but does not address their legal implications or strategies for implementing them (see your lawyer for this). It also does not touch upon important issues such as the need to get consents and approvals (landlord, agency, vendor, and spousal, among others), the use of fairness opinions, opinions of counsel, no-shop agreements, hold-back provisions, earn-out provisions, or issues such as UCC bulk sales compliance, indemnification, joint and several liability, and the like. These deals can have many nuances that only a knowledgeable lawyer will pick up.
For your particular deal, get a good business lawyer. It is not wise to scrimp on expense in complex areas where stakes can be high. Whatever is saved today will be spent many times over trying to dig out of a mess if problems occur. Therefore, budget what is needed and do it right.