The purchase and sale process

As a growing land care professional, sometimes we run into situations where there seems to be a good deal on the horizon and the idea of purchasing a competitor is appealing. Depending on what stage you are in life, selling your firm might also be appealing. But how is it done? As in any large decision, no matter who you ask, they’ll have an opinion.

Problem: If those opinions don’t come from qualified professionals, they can be drastically wrong and end up costing you a lot of money in terms of purchase price, payouts and or taxes. Solution: You need to consult a good lawyer or CPA who specializes in merger and acquisition structuring. These professionals can be expensive, so we recommend you familiarize yourself with the process so you can communicate your vision before you seek out this advice.

Let’s do a run-down of how the process works:

Buyer’s perspective

Confidentiality agreement/info request

• Avoid risk of competitors trying to steal the deal or driving up the price if it became known the seller was selling the business.
• Need to know more information about seller’s business strengths & weaknesses, (e.g., personnel, customers, equipment).
   

Letter of intent / due diligence (D/D)

• Agree on major deal points such as price and structure of proposed deal (stock or asset purchase transaction).
• Verify accuracy of seller’s financial and non-financial information about the business.
• Timing, access to records, cost and proper talent to conduct D/D.
   

Financing the deal

• Small down payment as possible to reduce risk of loss.
• Pay balance over long period at low interest rate.
• Use bank and/or investor money.
• Use future earnings of seller’s business to pay balance due seller.
   

Purchase and sale contract

• Want as many representations and warranties as to all aspects of the business being purchased.
• Want seller to retain all liabilities prior to closing the deal.
• Want to eliminate any chance of risk for items not discovered during D/D.
• Want to withhold 10-20 percent of the purchase price in escrow for the first one to two years after closing.
   

Other considerations

• Any employees not being retained.
• Is the seller’s office lease being assumed?
   

Closing the deal

• Ensure any open issues are satisfied and free/clear title to business is conveyed.

Seller’s perspective

Confidentiality agreement/info request

• Ensure trade secrets and customer lists are protected and not stolen by buyer.
• Give as little information as possible other than positive aspects of business.
• Keep lawyers and accountants fees in check given deal may not proceed.
   

Letter of intent (LOI)/due diligence (D/D)

• Agree on major deal points (same as buyer).
• Posture business for highest valuation.
• Negotiate and minimize volume of business records to provide under D/D
• Give buyer short window to do D/D.
• Seek break-up fee from buyer if LOI is terminated by buyer after D/D process.
   

Financing the deal

• Large cash down payment as possible in case business stalls after selling.
• Obtain guarantees and collateral to secure purchase price being paid over time.
• Don't act as a bank for a buyer. If so, then short period and high rate of interest.
   

Purchase and sale contract

• Give few representations and warranties about the business and make them precise and narrow in scope.
• Make sale of assets on “AS IS” basis.
• Provide as little indemnification as possible on potential contract breaches
• Reduce or eliminate any proposed escrow holdback from the purchase price.
• Shift as many business liabilities to seller post-closing.
   

Other considerations

• Negotiate L/T employment agreement.
• Employee liability for any terminated.
   

Closing the deal

• Ensure buyer cannot terminate deal before closing, get the money.

Conclusion.

Prior to embarking on a large decision such as this, the land care professional should understand the elements of how a purchase or sale is crafted then consult a qualified CPA and attorney to help guide him through the process.

Daniel S. Gordon is a CPA and John P. Corrigan is an Attorney, MBA and CPA who are both directors of Turfbooks, an accounting firm that specializes in accounting, as well as mergers and acquisitions for land care professionals nationwide.