NJ Business Lawyers

Acquiring a business is very different from starting one, and having an experienced business and corporate attorney involved from the outset can help you avoid costly surprises. When you buy an existing company, you are also buying its history, meaning its past contracts, its past compliance decisions, and in some cases its past problems. Thorough due diligence is what separates a buyer who understands exactly what they are acquiring from one who finds out the hard way after closing.

Every acquisition carries some risk that the business is not exactly what it appears to be on paper, and that risk falls squarely on the buyer once the deal closes. A seller who is eager to move forward will not always volunteer every issue that could affect your decision, not necessarily out of bad faith, but because they may not view certain items as material the way an outside buyer would. That gap in perspective is exactly what a disciplined diligence process, guided by an experienced business or corporate attorney, is designed to close.

Whether you are a first time buyer, a search fund, or a strategic acquirer expanding through acquisition, here is what a strong buy side diligence process should cover.

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If you are thinking about selling your business in the next one to three years, working with an experienced business attorney early in the process can make a significant difference in how smoothly that sale goes. The single biggest mistake most owners make is waiting until a buyer shows interest before getting organized. By the time a letter of intent is on the table, due diligence moves fast, and any gaps in your records can slow the deal down, reduce your purchase price, or in some cases cause a buyer to walk away entirely.

The good news is that most of what buyers look for is well within your control if you start early. Here is a due diligence checklist to help you get ahead of the process.

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When buying or selling a business, one of the most important decisions is how the transaction will be structured. In most mergers and acquisitions (M&A), a deal is structured as either an asset purchase or an equity purchase (referred to as a stock purchase for Corporations or membership interest purchase for LLCs).

Although both approaches ultimately transfer control of a business, the legal, tax, and liability implications can be dramatically different. The choice between these two structures affects issues such as: (i) liability exposure (ii) tax consequences; (iii) transfer of contracts and licenses; (iv) regulatory approvals (if any); and (v) negotiation dynamics between buyer and seller

Understanding the pros and cons of each structure is critical for entrepreneurs, investors, and business owners considering a transaction. This blog gives a practical overview of asset purchases vs. equity purchases and how each structure works.

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Many individuals and business owners operate under the incorrect assumption that when looking to raise capital, they can simply sell securities to any person on the street. However, the general rule is that any public offering of a security must be registered with the SEC, unless an exemption exists.

For many small businesses, registration with the SEC is not feasible due to the expense. Luckily, several exemptions from registration are offered. Some of the most common exemptions are found under regulation D (specifically Rule 506, which is a Safe Harbor under Section 4(a)(2)). Yes, it’s confusing. A Private Placement Memorandum (or PPM) is a document that businesses use to take advantage of such exemptions.

Read on to learn more about PPMs and how they can benefit your business when raising capital.

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