The Deeper Significance of a Listing Agreement

Listing agreements are very common when it comes to selling a business. In order to sell a business using a business broker, a listing agreement is usually required. In this article, we will explore this essential agreement and why it is so critical.

Signing a listing agreement legally authorizes the sale of a business. The fact is that signing a listing agreement serves to represent the end of ownership, which for many business owners, means heading into new territory. Quite often owning a business is more than “owning a business,” as the business represented a dream and/or a way of life.

Walking away from the dream or lifestyle represents a significant change. For many owners this is the end of a dream. It is not uncommon for many business owners to have started a business from “scratch,” and it is also only human to feel at least somewhat attached to the creation. Phrased another way, walking away from a business that one has worked on and cared for is often easier said than done. Businesses become integrated into the lives of their owners in a myriad of ways. Walking away is usually easier in theory than in practice.

Now, on the flipside of the coin, a signed listing agreement is a totally different animal for buyers. It represents the beginning of a dream. The lure of owning a business may come from a desire to achieve greater personal and financial independence, a sense of pride in owning and building something, a desire to always be an owner or a combination of all three. Buyers see the business as the next phase of their lives whereas sellers see the business as the past.

The listing agreement may seem simple enough, but what it represents is an important bridge between the seller and buyer. It is the job of the business broker to understand and consider the situation of both the seller and the buyer respectively and, in the process, work closely with both parties.

The lives of both the buyer and the seller will change greatly once the sale is completed, but in radically different ways. No one understands this simple, but very important fact, better and with more clarity than a business broker.

Copyright: Business Brokerage Press, Inc.

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Are You Sure Your Deal is Completed?

When it comes to your deal being completed, having a signed Letter of Intent is great. While everything may seem as though it is moving along just fine, it is vital to remember that the deal isn’t done until many boxes have been checked.

The due diligence process should never be overlooked. It is during due diligence that a buyer truly decides whether or not to move forward with a given deal. Depending on what is discovered, a buyer may want to renegotiate the price or even withdraw from the deal altogether.

In short, it is key that both sides in the transaction understand the importance of the due diligence process. Stanley Foster Reed in his book, The Art of M&A, wrote, “The basic function of due diligence is to assess the benefits and liabilities of a proposed acquisition by inquiring into all relevant aspects of the past, present, and predictable future of the business to be purchased.”

Before the due diligence process begins, there are several steps buyers must take. First of all, buyers need to assemble experts to help them. These experts include everyone from the more obvious experts such as appraisers, accountants and lawyers to often less obvious picks including environmental experts, marketing personnel and more. All too often, buyers fail to add an operational person, one familiar with the type of business they are considering buying.

Due diligence involves both the buyer and the seller. Listed below is an easy to use checklist of some of the main items that both buyers and sellers should consider during the due diligence process.

Industry Structure

Understanding industry structure is vital to the success of a deal. Take the time to determine the percentage of sales by product lines. Review pricing policies and consider discount structure and product warranties. Additionally, when possible, it is prudent to check against industry guidelines.

Balance Sheet

Accountants’ receivables should be checked closely. In particular, you’ll want to look for issues such as bad debt. Discover who’s paying and who isn’t. Also be sure to analyze inventory.

Marketing

There is no replacement for knowing your key customers, so you’ll want to get a list as soon as possible.

Operations

Just as there is no replacement for knowing who a business’s key customers are, the same can be stated for understanding the current financial situation of a business. You’ll want to review the current financial statements and compare it to the budget. Checking incoming sales and evaluating the prospects for future sales is a must.

Human Resources

The human resources aspect of due diligence should never be overlooked. You’ll want to review key management staff and their responsibilities.

Other Considerations

Other issues that should be taken into consideration range from environmental and manufacturing issues (such as determining how old machinery and equipment are) to issues relating to trademarks, patents and copyrights. For example, are these tangible assets transferable?

Ultimately, buying a business involves a range of key considerations including the following:

  • What is for sale
  • Barriers to entry
  • Your company’s competitive advantage
  • Assets that can be sold
  • Potential growth for the business
  • Whether or not a business is owner dependent

Proper due diligence takes effort and time, but in the end it is time and effort well-spent.

Copyright: Business Brokerage Press, Inc.

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Do You Really Know the Value of Your Company?

It is common for executives at companies to undergo an annual physical. Likewise, these same executives will likely examine their own investments at least once a year, if not more often. However, rather perplexingly, these same capable and responsible executives never consider giving their company an annual physical unless required to do so by rule or regulations.

Most Business Owners Don’t Know

Recently, a leading CPA firm undertook a study that was quite revealing. In particular, this study concluded that a whopping 65% of business owners don’t know the value of their company and 75% of the surveyed business owners had their net worth tied up in their businesses. Phrased another way, 75% of business owners don’t know how much they are worth! Perhaps most striking of all was the fact that a full 85% of business owners have no exit strategy whatsoever.

Having Recurrent Valuations is a Must

Business owners should know what their businesses are worth at least on an annual basis. Situations, both personal as well as in the economy at large, can change very rapidly. A failure to have a valuation leaves one exposed if issues suddenly arise involving estate planning or divorce or even partnership issues. These are just two examples of potential problems.

It is also vital to understand how your business compares to last year and previous years; after all, valuations should be increasing not decreasing. A valuation can also help you understand how your business compares to other businesses. Perhaps most importantly, an annual valuation can help you spot and fix problems.

“Buy, Sell or Get Out of the Way”

If you don’t know your valuation, then you truly don’t know where you are headed. As former Chrysler CEO, Lee Iacocca once stated, “Buy, sell or get out of the way.”

Standing still isn’t an option. You need to know your valuation in order to take full advantage of opportunities. You may feel that an acquisition isn’t the right move at the moment, but that doesn’t mean you shouldn’t be ready! Having a current valuation means you’re ready to go if opportunity does, in fact, knock!

You never know when a potential acquirer may enter the picture. Imagine missing out on a tremendous opportunity because you didn’t have a valuation in place. Often hot offers and hot opportunities depend on speed. The time it takes to get a valuation could mean that the opportunity is no longer available. An accurate annual valuation of your business provides a valuable option whether you choose to exercise it or not.

Copyright: Business Brokerage Press, Inc.

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Understanding Issues Your Buyer May Face

Not every prospective buyer actually buys a business. In fact, out of 15 prospective buyers, only 1 actually makes a purchase. Sellers should remember that being a buyer can be stressful. The bottom line is that buying a business is usually one of the single largest financial decisions that a person can make. In this article, we are going to explore a few of the reasons why being a buyer can be both stressful and taxing. Keeping a buyer’s perspective in mind will help you on the road to successfully selling your business.

A prospective buyer has many decisions to make before he or she decides to buy a business. Many prospective buyers are employed, and that means they will have to leave their existing job in order to buy a business. Simply stated, a buyer will have to leave the safety and security of their job and “strike out on their own.”

There are also other substantial financial concerns for buyers as well. The majority of buyers will, in fact, have to take out loans in order to purchase a business. Additionally, the new owner will need to execute a lease or assume the existing list. At the end of the day there exist an array of weighty business decisions that a buyer must make.

Ultimately, a buyer has to decide whether or not he or she is ready to take a giant step and purchase a business. This is more than just a financial decision. The enormity of the decision to purchase a business is such that touches every aspect of a person’s life. Owning a business can be very time consuming and demand a great deal of one’s attention. The end result, is that buying a business has a direct impact on both one’s financial life and one’s personal life. Owning a business can be extremely time consuming and this is particularly true for new business owners.

Prospective buyers need to weigh all the factors involved in buying a business. Caution must be exercised. Buyers need to step back and fully assess whether or not owning a business is right for them both on a personal and financial level. When sellers put themselves in their buyer’s “shoes,” things begin to look a bit differently.

When it comes to buying or selling a business, the assistance of a business broker is invaluable. A business broker understands what is involved in owning a business and can help both buyers and sellers evaluate the pros and cons of any transaction.

Copyright: Business Brokerage Press, Inc.

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The Six Most Common Types of Buyers: Pros & Cons

Business owners considering selling should realize that they have many different types of prospective buyers. Today’s prospective business buyers are more sophisticated and diverse than ever before. Let’s take a closer look at the different types of prospective buyers and what you should know about each of them.

1. Family Members

Family members often buy businesses from other family members. There are many reasons this happens. For example, a family member is already very familiar with the business. If a family member is treating the responsibility seriously and has prepared years in advance for the responsibility of owning the business, then selling to a family member can work.

However, there are many potential problems when it comes to selling a business to a family member. One problem is that the family member simply lacks the cash to buy the business. This can cause disruptions. If the family member is unprepared to run the business, then the business can suffer a range of disruptions leading to a loss of business. Any family member that buys a business must be ready for the responsibility. An outside buyer usually solves all of the problems that come along with a family member buying a business.

2. The Individual Buyer

Most owners of small to mid-size businesses like the idea of selling to an individual buyer. Often these buyers are older between the ages of 40 and 60, and bring with them a good deal of real world business experience acquired in the corporate world. For these buyers, owning a business is a dream come true. Many individual buyers have the funds necessary to buy.

An individual buyer who is looking to replace a job that has been lost or downsized is often an excellent candidate. On the downside, individual buyers quite often have not owned a business before and may be intimidated by what is involved. At the end of the day, the individual buyer is often easier to deal with than other types of buyers.

3. Business Competitor

It is quite common for business owners to look to their competitors when it comes time to sell. No doubt, the approach of selling to a competitor makes sense, as a competitor already understands the business and will likely see the value.

Additionally, a buyer may see buying a similar business as an easy way to expand and increase cash flow. That stated, it is extremely important to work with a business broker in this situation. By going through a business broker, it is possible to have a secure confidentiality agreement in place so that the prospective buyer doesn’t learn the name of the business or other details before signing the agreement.

4. The Foreign Buyer

Foreign buyers often have the funds they need and look at buying an existing business as a way of addressing such issues as language barrier, licensing difficulties and other problems. Business brokers can be very helpful when working with foreign buyers, as they have experience with the obstacles a foreign buyer may face.

5. Synergistic Buyers

A synergistic buyer is one that feels that a particular business would complement his or her existing business. The idea is that they can combine the two businesses and in the process, lower their cost and acquire new customers. These are just a few of the advantages for a synergistic buyer, and that is why they are often willing to pay more than other buyers.

6. Financial Buyers

Financial buyers can come with a long list of demands, criteria and complications, but that doesn’t mean that they should be discounted. With the assistance of a business broker, financial buyers can still be good prospective candidates.

It is, however, important to remember that these buyers want maximum leverage and are often a good option for the seller who wants to continue to manage a company after it is sold. It is common for financial buyers to offer a lower purchase price than other types of buyers. After all, buying the business is strictly for financial purposes and it isn’t attached to fulfilling a dream or a family tradition. Financial buyers are looking for a business that is generating sufficient profits so as to support the business and provide a good return to the owner.

Working with a business broker can help you find the right kind of buyer for you. Every business is different and every prospective buyer is different. A business broker can help you navigate the possibilities so you find the right buyer for your business.

Copyright: Business Brokerage Press, Inc.

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5 Things You Need to Know About Confidentiality Agreements

Confidentiality is a major concern in virtually every business. Quite often business owners become a little nervous when it comes time to sell their business; after all, business owners usually want to keep the fact that they are selling confidential. Yet, at the same time, business owners want to receive top-dollar for their businesses and sell that business as quickly as possible. In order to sell a business quickly and receive top-dollar, it is usually necessary to present the business to a range of prospects. The simple fact is that you can’t sell a business without letting prospective buyers know that it is for sale.

All of this adds up to one simple conclusion: you will need a confidentiality agreement when selling a business. Let’s look at a few of the key points your confidentiality agreement should cover.

  1. Type of Negotiations

First, your confidentiality agreement should cover whether or not the negotiations are open or secret and exactly what kind of information can be disclosed.

2. Duration of Agreement

Your confidentiality agreement must specify exactly how long the agreement will be in effect. In most circumstances, it is prudent for the seller to seek a permanently binding confidentiality agreement.

3. Special Considerations

There are other considerations as well, for example, does your business hold any patents? A buyer could learn about your inventions during a buying process so you’ll want to make sure that your confidentiality agreement protects your patent and copyright interests as well.

4. State Laws

Additionally, your confidentiality agreement must factor in different state laws if the other party is based in a state different than your own.

5. Recourse in the Case of Breach

Finally, your confidentiality agreement should outline what recourse you will have if the agreement is breached. Having a confidentiality agreement does not offer magical protection against a violation. However, a confidentiality agreement does ensure that prospective buyers understand the seriousness of the situation and that there are indeed severe consequences if the agreement is not followed.

It is important for all parties involved to realize that a confidentiality agreement is a legally binding agreement that is enforceable in a court a law. Thanks to a confidentiality agreement, a seller can share confidential information with a prospective buyer or business broker so that a business can be properly evaluated.

With so much on the line, it is vital that you have your confidentiality agreement drawn up by a legal professional. A good confidentiality agreement is an investment in your business. It is possible for a business owner to sell his or her business and do so with some degree of confidence that information shared with prospective buyers will not be disclosed.

Copyright: Business Brokerage Press, Inc.

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Financing the Business Sale: 6 Questions to Know

How the purchase of a business will be structured is something that must be dealt with early on in the selling process. The simple fact is that the financing of the sale of a business is too important to treat as an afterthought. The final structure of any sale will be the result of the negotiations between buyer and seller.

In order for the sale to be completed in a satisfactory manner, it is vital that the seller answers six key questions:

  1. What is your lowest “rock bottom” price? It is important for sellers to know what is the lowest price they are willing to accept before they begin negotiations. Far too often, sellers have not determined what price is their “lowest price” and this can literally cause negotiations to fall apart.
  2. What are the tax consequences of the sale? Just as sellers often don’t know what their lowest price is, it is also true that sellers often don’t think about the tax consequences of the sale.
  3. Interest rates are no small matter. It is important to determine what is an acceptable interest rate in the event of a seller-financed sale.
  4. Have unsecured creditors been paid off? Does the seller plan on paying for a portion of the closing costs?
  5. Will the buyer have to assume any long-term or secured debt?
  6. Will the business be able to service the debt and still give a return that is acceptable to a buyer?

Studies have indicated that there is a direct relationship between more favorable terms and a higher price. In particular, one study revealed that offering favorable terms could increase the total selling price by as much as 30 percent!

Business brokers are experts in what it takes to successfully buy and sell businesses, and this is exactly the kind of insight and information that they have at their disposal. Experienced brokers are able to use their knowledge of everything from current market conditions and financing strategies to the knowledge of previous sales and a given geographic region to help facilitate successful deals.

Usually, selling a business is one of the most important things that a business owner does in his or her professional lifetime. Business brokers understand this fact, and they understand the importance of making certain that the deal is structured correctly. The facts are that the way in which a sale is structured could mean the difference between success and failure.

Structuring a deal in such a way where it is the best possible deal for both the buyer and seller, helps to ensure that a deal is successfully concluded. Working with a business broker is one of the best way to ensure that a business will be sold.

Copyright: Business Brokerage Press, Inc.

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Defining Goodwill

You may hear the word “goodwill” thrown around a lot, but what does it really mean? When it comes to selling a business, the term refers to all the effort that the seller put into a business over the year. Goodwill can be thought of as the difference between the various tangible assets that a business has and the overall purchase price.

The M&A Dictionary defines goodwill in the following way, “An intangible fixed asset that is carried as an asset on the balance sheet, such as a recognizable company or product name or strong reputation. When one company pays more than the net book value for another, the former is typically paying for goodwill. Goodwill is often viewed as an approximation of the value of a company’s brand names, reputation, or long-term relationships that cannot otherwise be represented financially.”

Goodwill vs. Going-Concern

Now, it is important not to confuse goodwill value with “going-concern value,” as the two are definitely not the same. Going-concern value is typically defined by experts, as the fact that the business will continue to operate in a manner that is consistent with its intended purpose as opposed to failing or being liquidated. For most business owners, goodwill is seen as good service, products and reputation, all of which, of course, matters greatly.

Below is a list of some of the items that can be listed under the term “goodwill.” As you will notice, the list is surprisingly diverse.

42 Examples of Goodwill Items

  • Phantom Assets
  • Local Economy
  • Industry Ratios
  • Custom-Built Factory
  • Management
  • Loyal Customer Base
  • Supplier List
  • Reputation
  • Delivery Systems
  • Location
  • Experienced Design Staff
  • Growing Industry
  • Recession Resistant Industry
  • Low Employee Turnover
  • Skilled Employees
  • Trade Secrets
  • Licenses
  • Mailing List
  • Royalty Agreements
  • Tooling
  • Technologically Advanced Equipment
  • Advertising Campaigns
  • Advertising Materials
  • Backlog
  • Computer Databases
  • Computer Designs
  • Contracts
  • Copyrights
  • Credit Files
  • Distributorships
  • Engineering Drawings
  • Favorable Financing
  • Franchises
  • Government Programs
  • Know-How
  • Training Procedures
  • Proprietary Designs
  • Systems and Procedures
  • Trademarks
  • Employee Manual
  • Location
  • Name Recognition

As you can tell, goodwill, as it pertains to a business, is not an easily defined term. It is also very important to keep in mind that what goodwill is and how it is represented on a company’s financial statements are two different things.

Here is an example: a company sells for $2 million dollars but has only $1 million in tangible assets. The balance of $1 million dollars was considered goodwill and goodwill can be amortized by the acquirer over a 15-year period. All of this was especially impactful on public companies as an acquisition could negatively impact earnings which, in turn, negatively impacted stock price, so public companies were often reluctant to acquire firms in which goodwill was a large part of the purchase price. On the flip side of the coin, purchasers of non-public firms received a tax break due to amortization.

The Federal Accounting Standards Board (FASB) created new rules and standards pertaining to goodwill and those rules and standards were implemented on July 1, 2001. Upon the implementation of these rules and standards, goodwill may not have to be written off, unless the goodwill is carried at a value that is in excess of its real value. Now, the standards require companies to have intangible assets, which include goodwill, valued by an outside expert on an annual basis. These new rules work to define the difference between goodwill and other intangible assets as well as how they are to be treated in terms of accounting and tax reporting.

Before you buy a business or put a business up for sale, it is a good idea to talk to the professionals. The bottom line is that goodwill can still represent all the hard work a seller put into a business; however, that hard work must be accounted for differently than in years past and with more detail.

Copyright: Business Brokerage Press, Inc.

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A Deeper Look at Seller Financing

Buying a business requires a good deal of capital or lender resources. The bottom line is that a large percentage of buyers don’t have the necessary capital or lender resources to pay cash and that is where seller financing comes into play. The fact is that seller financing is quite common. In this article, we will take a deeper look at some of the key points to remember.

Is Seller Financing a Good Idea?

Many buyers feel that a seller’s reluctance to provide seller financing is a “red flag.” The notion is that if a business is truly as good as the seller claims it to be, then providing financing shouldn’t be a “scary” proposition. The truth is that this notion does carry some weight in reality. The primary reason that many sellers are reluctant to provide seller financing is that they are concerned that the buyer will be unsuccessful. This, of course, means that if the buyer fails to make payments, that the seller could be forced to take the business back or even forfeit the balance of the note.

However, it is important for sellers to look at the facts. Sellers who sell for all cash receive approximately 70% of the asking price; however, sellers receive approximately 86% of the asking price when they offer terms!

Seller Financing has a Range of Benefits

Here are a few of the most important benefits associated with seller financing: the seller receives a considerably higher price, sellers can get a much higher interest rate from a buyer than they can receive from a financial institution, the interest on a seller-financed deal will add significantly to the actual selling price, there are tax benefits to seller financing versus an all-cash sale and, finally, financing the sale serves as a vote of confidence in the buyer.

Clearly there are no guarantees that the buyer will be successful in operating the business. Yet, it is key that sellers remember that in most situations the buyers are putting a large percentage of their personal wealth into the purchase of the business. In other words, in most situations, the buyer is heavily invested even if financing is involved.

Business brokers excel in helping buyers and sellers discover creative ways to finance the sale of a business. Your broker can recommend a range of payment options and plans that can, in the end, often make the difference between a successful sale and failure.

Copyright: Business Brokerage Press, Inc.

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Selling a Business? Be Aware of These Four Potential Issues

We’ve outlined below a few unexpected aspects of the business sale process that can pop up. Sometimes they severely impact the turnaround time of a sale. But if you can understand these potential issues better, you will be better prepared to try to circumvent them.

1. Do You Have Time on Your Side?

It’s helpful to use an intermediary who will assist with the filtering of prospects vs. “suspects.” However, the inclusion of yet another party, in addition to both the business seller and potential buyers, increases the amount of time required to navigate the process.

Sellers are typically unaware of the time and documentation needed to compile the required Offering Memorandum. Once completed, the seller must provide both the intermediary and potential buyer more time to review and propose meetings and pricing. In the interim, owners are faced with the challenge of keeping their business thriving.

2. Trying to Do Too Much

It’s not surprising when a company owner is also its founder that individual is typically used to making all of the decisions. That’s why business owners in the midst of selling will soon find themselves challenged with the desire to fully be a part of both the selling process and the running of the business.

Delegation to someone else, such as the Sales Manager, can be truly invaluable. Think of your top people as extremely valuable resources. They may have first-hand knowledge regarding additional concerns such as competition and potentially interested acquirers. Bringing in trusted employees to be part of the sales process can be tremendously beneficial.

3. Delays Due to Stockholders

When mid-sized, privately held companies are supported by minority stockholders, these individuals must be included in the selling process—however small their share may be. The business owner will need to firstly obtain their approval to sell by using the sale price and terms as influencers. Of course, issues such as competing interests, pricing disagreements, and even inter-family concerns may cause conflict and further delay the process.

4. Money Issues

Once sellers decide upon a price that they would like to see, it is sometimes difficult for them to accept or even consider anything less. After all, a business owner likely created the company and may have a strong emotional attachment.

Another factor that often interferes with a successful sale occurs when sellers instantly turn down offers because they don’t meet with their desired asking price.

That’s when the intermediary can often come in to salvage the deal. A business broker often serves as a negotiator. He or she can work out a deal that is structured in a manner that works for both sides.

Copyright: Business Brokerage Press, Inc.

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DISCLAIMER: TM Business Brokers, LLC does not offer securities for sale, real estate brokerage services, accounting, tax or legal advice, or financing negotiations. TM Business Brokers, LLC does not audit / verify any information provided by business owners and their third party advisers, and we make no representations or warranties thereto.