This is intended to help outline the general process of buying a small business or startup in New York, explaining the legal aspects of how a corporate attorney can assist in a business purchase transaction. It is not intended to be construed as legal advice for your particular situation.
Your business acquisition attorney is not only your legal expert, but also will facilitate the business purchase process. Your business lawyer will coordinate the processes, interface with all the players, and move the business transaction along, culminating in a successful closing. As your legal expert, your business lawyer will conduct the legal due diligence, negotiate, draft and review the necessary legal documents, and should be intimately familiar with the legal intricacies aspects of your business purchase — keeping abreast of the facts and circumstances of the deal, advising you on any resulting legal consequences, and preparing the strategies to avoid legal problems.
1. Of course, the first step in buying a business is to find a business to buy.
You can find businesses to buy in the classified section of most metropolitan newspapers, on those newspapers’ websites, in the Wall Street Journal, through your own networking efforts — whether in person or on the internet (like LinkedIn or Facebook) or through business brokers. Corporate lawyers generally do not sell businesses unless they act as a broker or finder or happen to know a client or acquaintance who wants to sell a business. There are tons of businesses for sale — the question is whether acquiring the business makes economic sense (and is the right business for you).
After you have identified the possible acquisition target, you (with the assistance of your corporate attorney) need to conduct due diligence on the business (investigate the business, its contracts, customers, financial reports, among other things) and determine what the business is worth and the terms of the purchase. These steps are not mutually exclusive, they are interdependent and occur simultaneously — as you find out facts about the business, these may reflect on the business terms of the deal.
2. The “Term Sheet” — Negotiating the Business Terms of the Purchase
While you are conducting due diligence on the business you intend to buy, you should begin negotiating the terms and conditions of the purchase of the business. This high level “term sheet” outline, would sufficiently detail (without necessarily including all the legalese) some of the following items, among others:
The parties to the business transaction;
Whether the transaction is to be structured as a stock purchase (buying all of the assets and liabilities of the business) or only purchasing certain assets of the small business (real estate, accounts, intellectual property, among other assets);
The purchase price and what assets or stock is being purchased;
The timing of the payment of the purchase price (lump sum or in installments);
If payment is installments, the amount of the down payment and the interest rate, and the collateral securing the note (also consider conditions to repayment (e.g., only from profits);
Binding and non-binding terms; and
The “term sheet” (also known as a “LOI,” “letter of intent,” “MOU,” or a “memorandum of understanding”), which could be as short as a page or two, should expressly state that certain obligations are non-binding on the parties. You may want to state that either party could walk away from the deal if they change their mind (maybe after a no-shop period), but you might want to make certain terms binding like reimbursement and confidentiality obligations. As that the stock purchase agreement or asset purchase agreement will be drafted from the term sheet, you need to be as specific as possible with respect to contingencies to closing, offsets to the purchase price and other obligations (it will be hard to convince the seller to agree to terms in the resulting agreement differing from the deal points already agreed upon in a term sheet).
You should consult a business attorney at some point during the drafting of the term sheet (even if the first draft of the term sheet is prepared by the business person, you should have your business attorney review and/or negotiate it before it is signed). Please see my post “Negotiating the Terms of the Deal — Buying or Selling a Small Business In New York” for a more detailed discussion about putting together a term sheet.
3. Conducting Due Diligence
Due diligence is the process of thoroughly investigating the business being acquired. The outcome of your business due diligence may very well impact the price you are paying and other terms and conditions of the term sheet. You will want to have your financial advisor review prior years’ tax returns and financial reports. You should have your business lawyer review all major contracts (including leases) to see if there are any “atomic bombs” that may be triggered by the sale of the business or that have any surprise obligations or rights (balloon payments, rights of first refusals, right to terminate, rights of consent, etc.). If the business owns or leases real estate you want to review all documentation, leases, surveys, and environmental reports (or order one if there is a possibility that the business in question — or its predecessors — might have contaminated the land). Read “How to Conduct Due Diligence for a Merger or Purchase of a Business“, for more details and a checklist of some due diligence items that should be reviewed by you and your corporate attorney.
4. Preparing the Proper Documentation for the Business Purchase
There are many documents needed when transferring a business: the stock purchase agreement or asset purchase agreement, assignment and assumption agreements, deeds, consents, tax filings, among others. You should consult a New York business attorney to negotiate, draft and/or review these instrumental agreements and documents which are necessary to transfer the business.
The most important document in a business sale is the “purchase agreement” (also known as the “sales agreement” or “acquisition agreement”), which will be in the form of a stock purchase or asset purchase. To protect yourself as the buyer, your attorney should prepare the first draft of this document. Otherwise, if the seller’s attorney prepares the sales agreement it can be one-sided, or worse yet, if the attorney is not too experienced, it might not cover the terms and conditions to the business sale that properly encompasses the complexity of the business or transaction.
Once the purchase agreement has been finalized, your business attorney can prepare the “closing checklist” of all of the consents, documents, filings, and agreements that need to be prepared and executed, and a list of all contingencies that need to occur on or before the “closing.”
5. The Closing of the Business Purchase
Generally, the closing consummates the transaction (unless of course, there are post closing obligations to occur). At the closing the parties and their corporate attorneys get together to exchange money and property, sign documents, and handle the remaining paperwork.
If you are considering a buying a small business in New York, make sure to check with your accountant and/or tax adviser and a New York Business Lawyer. There may be important tax and other legal consequences to consider before making the decision.