The Letter of Intent has been signed by both buyer and seller and everything seems to be moving along just fine. It would seem that the deal is almost done. However, the due diligence process must now be completed. Due diligence is the process in which the buyer really decides to go forward with the deal, or, depending on what is discovered, to renegotiate the price - or even to withdraw from the deal. So, the deal may seem to be almost done, but it really isn't - yet!
It is important that both sides to the transaction understand just what is going to take place in the due diligence process. The importance of the due diligence process cannot be underestimated. 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."
Prior to the due diligence process, buyers should assemble their experts to assist in this phase. These might include appraisers, accountants, lawyers, environmental experts, marketing personnel, etc. Many buyers fail to add an operational person familiar with the type of business under consideration. The legal and accounting side may be fine, but a good fix on the operations themselves is very important as a part of the due diligence process. After all, this is what the buyer is really buying.
Since the due diligence phase does involve both buyer and seller, here is a brief checklist of some of the main items for both parties to consider.
Industry Structure
Figure the percentage of sales by product line, review pricing policies, consider discount structure and product warranties; and if possible check against industry guidelines.
Human Resources
Review names, positions and responsibilities of the key management staff. Also, check the relationships, if appropriate, with labor, employee turnover, and incentive and bonus arrangements.
Marketing
Get a list of the major customers and arrive at a sales breakdown by region, and country, if exporting. Compare the company's market share to the competition, if possible.
Operations
Review the current financial statements and compare to the budget. Check the incoming sales, analyze the backlog and the prospects for future sales.
Balance Sheet
Accounts receivables should be checked for aging, who's paying and who isn't, bad debt and the reserves. Inventory should be checked for work-in-process, finished goods along with turnover, non-usable inventory and the policy for returns and/or write-offs.
Environmental Issues
This is a new but quite complicated process. Ground contamination, ground water, lead paint and asbestos issues are all reasons for deals not closing, or at best not closing in a timely manner.
Manufacturing
This is where an operational expert can be invaluable. Does the facility work efficiently? How old and serviceable is the machinery and equipment? Is the technology still current? What is it really worth? Other areas, such as the manufacturing time by product, outsourcing in place, key suppliers - all of these should be checked.
Trademarks, Patents & Copyrights
Are these intangible assets transferable, and whose name are they in. If they are in an individual name - can they be transferred to the buyer? In today's business world where intangible assets may be the backbone of the company, the deal is generally based on the satisfactory transfer of these assets.
Due diligence can determine whether the buyer goes through with the deal or begins a new round of negotiations. By completing the due diligence process, the buyer process insures, as far as possible, that the buyer is getting what he or she bargained for. The executed Letter of Intent is, in many ways, just the beginning.
Buying a Business - Some Key Consideration
What's for sale? What's not for sale? Is real estate included? Is some of the machinery and/or equipment leased?
Is there anything proprietary such as patents, copyrights or trademarks?
Are there any barriers of entry? Is it capital, labor, intellectual property, personal relationships, location - or what?
What is the company's competitive advantage - special niche, great marketing, state-of-the-art manufacturing capability, well-known brands, etc.?
Are there any assets not generating income and can they be sold?
Are agreements in place with key employees and if not - why not?
How can the business grow? Or, can it grow?
Is the business dependent on the owner? Is there any depth to the management team?
How is the financial reporting handled? Is it sufficient for the business? How does management utilize it?
Tuesday, June 29, 2010
Thursday, June 24, 2010
The Term Sheet
Buyers, sellers, intermediaries and advisors often mention the use of a term sheet prior to the creation of an actual purchase and sale agreement. However, very rarely do you ever hear this document explained. It sounds good but what is it specifically?
Very few books about the M&A process even mention term sheet. Russ Robb's book Streetwise Selling Your Business defines term sheet as follows: "A term sheet merely states a price range with a basic structure of the deal and whether or not it includes the real estate." Attorney and author Jean Sifleet offers this explanation: "A one page 'term sheet' or simply answering the questions: Who? What? Where? and How Much? helps focus the negotiations on what's important to the parties. Lawyers, accountants and other advisors can then review the term sheet and discuss the issues." She cautions, "Be wary of professional advisors who use lots of boilerplate documents, take extreme positions or use tactics that are adversarial. Strive always to keep the negotiations 'win-win.'"
If the buyer and the seller have verbally agreed on the price and terms, then putting words on paper can be a good idea. This allows the parties to see what has been agreed on, at least verbally. This step can lead to the more formalized letter of intent based on the information contained in the term sheet. The term sheet allows the parties and their advisors to put something on paper that has been verbally discussed and tentatively agreed on prior to any documentation that requires signatures and legal review.
A term sheet is, in essence, a preliminary proposal containing the outline of the price, terms and any major considerations such as employment agreements, consulting agreements and covenants not to compete. It is a good first step to putting a deal together.
Very few books about the M&A process even mention term sheet. Russ Robb's book Streetwise Selling Your Business defines term sheet as follows: "A term sheet merely states a price range with a basic structure of the deal and whether or not it includes the real estate." Attorney and author Jean Sifleet offers this explanation: "A one page 'term sheet' or simply answering the questions: Who? What? Where? and How Much? helps focus the negotiations on what's important to the parties. Lawyers, accountants and other advisors can then review the term sheet and discuss the issues." She cautions, "Be wary of professional advisors who use lots of boilerplate documents, take extreme positions or use tactics that are adversarial. Strive always to keep the negotiations 'win-win.'"
If the buyer and the seller have verbally agreed on the price and terms, then putting words on paper can be a good idea. This allows the parties to see what has been agreed on, at least verbally. This step can lead to the more formalized letter of intent based on the information contained in the term sheet. The term sheet allows the parties and their advisors to put something on paper that has been verbally discussed and tentatively agreed on prior to any documentation that requires signatures and legal review.
A term sheet is, in essence, a preliminary proposal containing the outline of the price, terms and any major considerations such as employment agreements, consulting agreements and covenants not to compete. It is a good first step to putting a deal together.
Tuesday, June 22, 2010
Buyer Introduction
Going into business for yourself is a big step, one that can be full of apprehension and even fear. Almost 90 percent of all those who purchase a small business have never owned a business. Most of them also bought a business that was different than what they had been looking for. These business buyers had the opportunity to explore the marketplace, and subsequently they found a business more to their liking. In most cases, the seller financed the sale of his or her business.
As you begin your search for a business, keep in mind that running your own business is more than a job; it is a lifestyle change. In most cases, it is a very big lifestyle change. Usually, you will be working longer hours, you will be making all of the decisions - and, as the expression says, "you will be the chief cook and bottle washer." In other words, you will be doing all of the work from running the business to, in may cases, sweeping the floor and changing the light bulbs. Most buyers are looking for many of the following in considering the purchase of a business:
Pride in the service or the product
Flexibility
Income
Control of your own destiny
Recognition
Security
Privacy
Status
Customer and employee contact
What To Look For
1. How long the business has been in business.
A business with a long track record means there are good reasons for that business to be operating. It will be well known in the area, and people will be used to patronizing the business or using its services. The longer it has been in operation, generally, the better the business.
2. How long the present owner has owned the business.
The longer the present owner has been in business, the more likely he or she has been successful. People don't stay in business if they are not making money.
3. Why the present owner is selling.
If the owner of a business has been in business for six months, is 37 years old and wants to retire, you should be suspicious. The more valid the reason for sale, the more realistic the seller will be in considering your offer. However, keep in mind that after five or six years or more, people do get restless or "burn-out" sets in, or people look for new challenges. Why the seller is selling is an important question - get the answer.
4. Why books and records are important.
The financial records of the business are a good indication of how well the business has been doing over the years. Keep in mind that tax records are not designed to show the business in the best light: no one likes to pay more taxes than they have to, and owners of businesses are no different. Generally, tax returns are a worst case scenario. You need to be able to look at the expenses and discover which ones are non-cash items, such as depreciation and business use of home and vehicles. How important was the business trip to Las Vegas? A professional business broker can point these items out to you. When in doubt, however, seek outside assistance.
Keep in mind that financial records are only history. There are no guarantees that they will or can be duplicated or repeated. All of your profits are future. In the final analysis, the financial records of the business are an indicator of what the business has done; what you do with its future is up to you.
5. How to determine if the seller is reporting all income.
The simple answer is - you cannot determine if the seller is reporting all income! Not reporting income is against the law. You should consider only the income that the seller can show you. We all know, of course, especially in cash type businesses, there is the possibility that the seller is not reporting all of his or her income for tax purposes. This "underground economy" has been well-documented and is in the billions of dollars. Many sellers will tell you about how much they are "skimming," but you should ignore their statements, since they have no way of proving these amounts. In determining whether a business is the right one for you, you should base the decision on the figures actually supplied to you by the seller.
The Bottom Line
Being in business for yourself can be a daunting prospect. There are no guarantees. At some point, after all of your investigation is completed, you will still have to make that "leap of faith" that is necessary to proceed with the purchase of the business. You will have to work hard, perhaps even "tighten your belt" a little and perform many different jobs to be successful in your own business. But, if running your own show, making your own decisions, not having to worry about job security (remember, no one can fire you from your own business), and just being on your own are important - then owning a business is for you. After taking this leap of faith, almost all business owners will tell you that they would never go back to being an employee.
As you begin your search for a business, keep in mind that running your own business is more than a job; it is a lifestyle change. In most cases, it is a very big lifestyle change. Usually, you will be working longer hours, you will be making all of the decisions - and, as the expression says, "you will be the chief cook and bottle washer." In other words, you will be doing all of the work from running the business to, in may cases, sweeping the floor and changing the light bulbs. Most buyers are looking for many of the following in considering the purchase of a business:
Pride in the service or the product
Flexibility
Income
Control of your own destiny
Recognition
Security
Privacy
Status
Customer and employee contact
What To Look For
1. How long the business has been in business.
A business with a long track record means there are good reasons for that business to be operating. It will be well known in the area, and people will be used to patronizing the business or using its services. The longer it has been in operation, generally, the better the business.
2. How long the present owner has owned the business.
The longer the present owner has been in business, the more likely he or she has been successful. People don't stay in business if they are not making money.
3. Why the present owner is selling.
If the owner of a business has been in business for six months, is 37 years old and wants to retire, you should be suspicious. The more valid the reason for sale, the more realistic the seller will be in considering your offer. However, keep in mind that after five or six years or more, people do get restless or "burn-out" sets in, or people look for new challenges. Why the seller is selling is an important question - get the answer.
4. Why books and records are important.
The financial records of the business are a good indication of how well the business has been doing over the years. Keep in mind that tax records are not designed to show the business in the best light: no one likes to pay more taxes than they have to, and owners of businesses are no different. Generally, tax returns are a worst case scenario. You need to be able to look at the expenses and discover which ones are non-cash items, such as depreciation and business use of home and vehicles. How important was the business trip to Las Vegas? A professional business broker can point these items out to you. When in doubt, however, seek outside assistance.
Keep in mind that financial records are only history. There are no guarantees that they will or can be duplicated or repeated. All of your profits are future. In the final analysis, the financial records of the business are an indicator of what the business has done; what you do with its future is up to you.
5. How to determine if the seller is reporting all income.
The simple answer is - you cannot determine if the seller is reporting all income! Not reporting income is against the law. You should consider only the income that the seller can show you. We all know, of course, especially in cash type businesses, there is the possibility that the seller is not reporting all of his or her income for tax purposes. This "underground economy" has been well-documented and is in the billions of dollars. Many sellers will tell you about how much they are "skimming," but you should ignore their statements, since they have no way of proving these amounts. In determining whether a business is the right one for you, you should base the decision on the figures actually supplied to you by the seller.
The Bottom Line
Being in business for yourself can be a daunting prospect. There are no guarantees. At some point, after all of your investigation is completed, you will still have to make that "leap of faith" that is necessary to proceed with the purchase of the business. You will have to work hard, perhaps even "tighten your belt" a little and perform many different jobs to be successful in your own business. But, if running your own show, making your own decisions, not having to worry about job security (remember, no one can fire you from your own business), and just being on your own are important - then owning a business is for you. After taking this leap of faith, almost all business owners will tell you that they would never go back to being an employee.
Friday, June 18, 2010
How Big Are Most Businesses? Smaller Than You Think!
Are you intrigued by the subject of just how big most businesses are?
American Business Information, an infoUSA company, has a breakdown that is quite revealing. Following is a randomly selected list of different types of businesses and the percentage of the total number in the U.S. that have less than $500,000 in annual sales.
Type of business % of the total number with sales less than $500,000
Advertising Agencies 58%
Apparel & Garments (retail) 67%
Art Galleries 78%
Art Supplies 53%
Auto Lube 77%
Auto Exhaust System Repair 56%
Auto Parts & Supply 27%
Auto Body Repair 66%
Bagels 58%
Beauty Salons 96%
Bicycle Shops 54%
Book Dealers (stores) 48%
Check Cashing Agencies 58%
Coffee Shops 79%
Coin-Op Laundries 96%
Convenience Stores 19%
Delicatessens 77%
Doughnut Shops 69%
Florists 82%
Hotels & Motels 57%
Ice Cream Parlors 74%
Lawn & Grounds Maintenance 82%
Liquors –Retail 42%
Paint – Retail 16%
Pet Shops 58%
Restaurants 59%
Sporting Goods – Retail 46%
Tanning Salons 94%
Auto dealers, manufacturers and many other companies that would have certainly lowered the percentages are not included, but the above create a cross-section of main street type businesses. These businesses make up almost 90 percent of the total number of businesses in the U.S. Looking at the above selection and not counting the numbers of each, but just the percentages - over 60 percent, on average, have annual sales of less than $500,000. That's what small business is all about. Being your own boss, running your own show, making your own decisions, answering (most of the time) to no one, living your own life, and making a living - that's small business. It would appear from the data that small business is alive and well!
American Business Information, an infoUSA company, has a breakdown that is quite revealing. Following is a randomly selected list of different types of businesses and the percentage of the total number in the U.S. that have less than $500,000 in annual sales.
Type of business % of the total number with sales less than $500,000
Advertising Agencies 58%
Apparel & Garments (retail) 67%
Art Galleries 78%
Art Supplies 53%
Auto Lube 77%
Auto Exhaust System Repair 56%
Auto Parts & Supply 27%
Auto Body Repair 66%
Bagels 58%
Beauty Salons 96%
Bicycle Shops 54%
Book Dealers (stores) 48%
Check Cashing Agencies 58%
Coffee Shops 79%
Coin-Op Laundries 96%
Convenience Stores 19%
Delicatessens 77%
Doughnut Shops 69%
Florists 82%
Hotels & Motels 57%
Ice Cream Parlors 74%
Lawn & Grounds Maintenance 82%
Liquors –Retail 42%
Paint – Retail 16%
Pet Shops 58%
Restaurants 59%
Sporting Goods – Retail 46%
Tanning Salons 94%
Auto dealers, manufacturers and many other companies that would have certainly lowered the percentages are not included, but the above create a cross-section of main street type businesses. These businesses make up almost 90 percent of the total number of businesses in the U.S. Looking at the above selection and not counting the numbers of each, but just the percentages - over 60 percent, on average, have annual sales of less than $500,000. That's what small business is all about. Being your own boss, running your own show, making your own decisions, answering (most of the time) to no one, living your own life, and making a living - that's small business. It would appear from the data that small business is alive and well!
Thursday, June 17, 2010
Tuesday, June 15, 2010
The Serious Buyer
A serious buyer should have the answers to the following questions:
Why are you considering the purchase of a business at this time?
What is your time-frame to find a suitable business?
Are you open-minded about different opportunities, or are you looking for a specific business?
Have you set aside an amount of capital that you are willing to invest?
Do you really want to be in business for yourself.
Are you currently employed or unemployed?
Are you the decision maker or are there others involved?
The real key to being a serious buyer, however, is whether you can make that "leap of faith" so necessary to the purchase of a business. No matter how much due diligence a buyer performs, no matter how many advisors there are to advise the buyer, at some point, the buyer has to make a leap of faith to purchase the business. There are no "sure things" and there are no guarantees - if a buyer is not comfortable being in business, he or she should not even contemplate buying a business.
Why are you considering the purchase of a business at this time?
What is your time-frame to find a suitable business?
Are you open-minded about different opportunities, or are you looking for a specific business?
Have you set aside an amount of capital that you are willing to invest?
Do you really want to be in business for yourself.
Are you currently employed or unemployed?
Are you the decision maker or are there others involved?
The real key to being a serious buyer, however, is whether you can make that "leap of faith" so necessary to the purchase of a business. No matter how much due diligence a buyer performs, no matter how many advisors there are to advise the buyer, at some point, the buyer has to make a leap of faith to purchase the business. There are no "sure things" and there are no guarantees - if a buyer is not comfortable being in business, he or she should not even contemplate buying a business.
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