My Business Broker, My Banker

When you buy a business (or a franchise) the seller traditionally are willing to pay a finder fee or commission. Brokers will charge anywhere from 5-20% of the purchase price for listing the business. Franchisors will pay referral fees depending on what the total price of the franchise is. How can that be of benefit to you when you are buying your business?

During tough credit times most brokers are willing to carry back some portion of the commission to help the buyer and the seller complete the transaction. Some business brokers live and die by the idea that they will absolutely never carry back a commission, consequently they can and will kill the business purchase. When using these techniques remember that business brokers are professionals and they need to make a living to. These techniques are not to pull the wool over their eyes, they’re merely present to help you negotiate better.

Here are a few steps to get your business broker or franchise consultant to help finance your acquisition.

1. Listen to the first piece of information the business broker wants to know – Several brokers will start off their relationship with a buyer by initially asking, “How much cash can you put down IMMEDIATELY on this business if you were going to buy it?” This is the business brokers’ way of playing poker. Remember the object (the true object) of poker is to get the other party to show the maximum risk they are willing to accept. If you tell the business broker that you have $100,000 then they will try to get you to put even more down.

2. Ask the broker how business is going – This is the thermostat to knowing whether or not the broker is willing to play ball or not. A broker whose business is thriving may not worry about lending a qualified borrower a small amount of money to finish the acquisition. On the other hand a starving broker may be more than willing to lend money to get some portion of the commission.

3. Avoid engaging in a contract directly with the broker – Traditionally the business broker has engaged the seller for a listing. A business buyer can engage a broker to help them buy a business; however in many states brokers do not split commissions. Consequently a contract with the broker with the buyer may lead to a very odd relationship.

4. Ask the seller how much of a commission they are paying the broker – Here is your opportunity to play poke. Most business sellers feel like they are getting nailed to the wall when they are selling the business. They are giving up 5-20% of the business to some guy or gal that the seller considers to be a glorified real estate agent! What did they do in the past 20 years to earn this huge portion of the seller’s retirement fund? I find getting to see the listing agreement is one of the easiest parts of negotiations.

5. Ask the broker where to come up with the remainder of the money – The broker will try to get you to put more cash on the table. The greater the cash you commit to buying the business the more likely you are to close, and be successful with your new venture (according to the business broker.) When and if there is a “boot” or remaining funds that you need to come up with ask the business broker – frankly where to find it at. They may direct you to some lending sources, but a good broker may consider doing a carry back with the seller to accommodate the transaction.

How Important Is a Business Broker to Buyers and Sellers?

Establishments and companies change ownership at some point. As such, the services of business brokers prove to be highly valuable for both the seller and the buyer. An aspiring entrepreneur needs to evaluate a target business establishment, and this is where a professional business broker can offer valuable assistance. The seller also will find it rewarding to seek the assistance of a business for sale broker for the advertising and the negotiation facilitation with prospect buyers.

Benefits of Hiring Business Brokers

Selling a business can be a demanding and tiresome process. This can take up a lot of time and can even affect the value of the business, as you spend more time on its sale process rather than on the daily operations of the business. This is where the services of business brokers come in handy.

First off, a professional broker can give you confidentiality, and can assure you that only the prospective buyers you approve will be contacted. A trustworthy and experienced broker can save you time in screening prospective buyers in advance. Brokers can already check if a prospect buyer has good financial resources to buy your business. They will also ask buyers to sign a confidentiality and non-disclosure contracts. If you attempt to sell your business openly or independently, you would most likely damage your staff’s morale. You would also give your competitors the opportunity to spread damaging rumors about you and steal your valued customers. When you hire a business for sale broker, he can work anonymously, ensuring the protection of your business.

Moreover, selling your business all by yourself can be inefficient, especially if you lack the experience. A business broker generally has more experience, resources, and tools to effectively reach potential buyers faster and easier. However, reaching target buyers is just one part of a broker’s job; getting the best price for your business is his other important job. A professional broker should have the capacity to advertise your company in such a way that it can attract serious and financially stable buyers. This would definitely increase your benefits and advantages in selling your business.

Finally, business brokers can name the value of your business. This process involves more than just revenue or profit, thus, you may undervalue or overvalue your company, and these mistakes bear indicative consequences. For an experienced business broker, there is a rare chance to commit such mistakes.

From a business buyer’s perspective, a business for sale broker brings a lot of advantages as well. If you are a buyer and asked the assistance of a broker, you will be able to have access to opportunities that you won’t likely find on your own. If you do not have enough knowledge regarding the industry you chose, you can get helpful advice and useful insights from a good business broker. Your broker can also facilitate other essential tasks such as researching recent market conditions, current prices, and reasonable financing.

Trusting only Certified Business Brokers

With the increasing number of sale brokers out there, you may face challenges identifying which ones are trustworthy and which ones are bogus. To resolve this dilemma, all you need to do is check their certifications and experiences. The main organization that provides business broker certification opportunities is the International Association of Business Brokers (IBBA). A certified business broker should have at least one of these designations:

– Accredited in Business Valuation (ABV)

– Certified Business Appraiser (CBA)

– Accredited Senior Appraiser in Business Valuation (ASA-BV)

– Certified Valuation Analyst (CVA)

Although a certification may be a good sign that a business broker is legitimate and trustworthy, it does not fully guarantee his competence in the field. The broker’s practical experience is also an important aspect to consider in choosing which one to trust. Do some research or ask around for the number of transactions that your prospect broker has successfully closed, as well as some positive feedback regarding his experience in the industry. An insightful business broker can benefit a lot from his or her experiences, such as building significant relationships within the industry and learning from past mistakes. Certification cannot match such benefits and advantages.

While certification is a vital requirement in establishing a broker’s credibility, you should always take into account the experience of a business for sale broker before making a decision. Choose one who has the knowledge and experience that you will not get anywhere else. Don’t you agree that the role and importance of business brokers is essential to both business sellers and buyers?

Prior to 1985, the SEC did not consider the sale of a business structured as a stock sale to be a sale of securities under the securities laws. This was known as the Sale of Business Doctrine. As a result, the penalties and rules that apply to securities sales did not apply to the sale of a business, and business brokers and merger and acquisition brokers were able to receive commissions in connections with those sales without being registered as a broker dealer. This changed in 1985 when the Supreme Court of the United States took the position that the sale of a business structured as a stock sale was indeed the sale of securities. As a result, business brokers and merger and acquisition brokers were prohibited from earning commissions in connection with those sales unless they were registered as a broker dealer. This created substantial implications for business brokers and mergers and acquisition brokers, especially where a transaction started out structured as a sale of assets and then during the course of negotiations, the transaction was restructured to be a sale of stock. In that case, business brokers and merger and acquisition brokers that were not registered as broker dealers were theoretically prohibited from earning a commission, simply because the structure of the transaction had changed. This result was often thought of as unfair in the industry.

The ABA task force on private placement broker dealers noted in its year 2000 final report that the broker dealer registration process involved significant costs as well as a regulatory model that is not the right size to accommodate the particular role played by business brokers in connection with the sale of a business. The requirement to register as a broker dealer is a lengthy process and there are substantial costs and fees, together with start up and first year expenses, including legal, accounting, and operating costs that can equal several hundred thousand dollars. Persons effecting one or several transactions a year simply cannot bear this financial burden. These firms do not hold customer funds or securities and generally they merely introduce the parties to one another and transmit documents between the parties. They do not participate in structuring or negotiating these transactions or otherwise advise the parties. Both buyers and sellers in this type of transaction are typically represented by legal counsel who can assist with due diligence, draft the transactional documents and advise their clients on structure, tax considerations and contractual provisions and there are remedies, both contractual and by operation of law, that are available to the parties in these types of transactions.

On January 31, 2014, the SEC changed its mind about these matters and issued a long awaited no action letter permitting certain merger and acquisition brokers to receive commissions in connection with the sale of a business even where the sale is structured as a stock sale.

Under the new interpretation, merger and acquisition brokers are permitted to facilitate acquisitions, mergers, business sales, and business combinations on behalf of buyers and sellers of privately-held companies and receive commissions in connection with the transaction. Moreover, the letter does not limit the amount or type of compensation that a merger and acquisition broker may receive, and it does not limit the size of the privately-held company. The letter also permits merger and acquisition brokers to advertise the sale of a privately-held company and include in such advertisements a description, general location and price range of the business.

For purposes of this letter ruling, a privately-held company is one that does not have any class of securities registered or required to be registered with the SEC under Section 12 of The Exchange Act or to which it is required to file periodic reports under Section 15(d) of The Exchange Act. Also the company must be a going concern and not a shell company.

As is so often the case in these matters, there is a catch. In this case, the catch is that the relief available under this no action letter is only available if the transaction satisfies ten (10) very specific conditions.

Those conditions are as follows:

1. The “merger and acquisition broker” must not have the ability to bind a party to a merger and acquisition transaction. A “mergers and acquisition broker” for the purpose of the letter is a person engaged in the business of effecting the securities transaction solely in connection with the transfer of ownership and control of a privately-held company through the purchase, sale, exchange, issuance, repurchase, or redemption of, or business combination involving securities or assets of the company, to a buyer that will actively operate the company or the business with the assets of the acquired company.

2. The merger and acquisition broker must not directly or indirectly through any of its affiliates provide financing for the merger and acquisition transaction. The merger and acquisition broker may assist the purchaser in obtaining financing from an unaffiliated third party but they must comply with all applicable legal requirements and disclose to their client, in writing, the receipt of any compensation in connection with the financing.

3. The mergers and acquisition broker is prohibited from having custody, control or possession of or otherwise handling funds or securities issued or exchanged in connection with the merger and acquisition transaction or other securities transactions for the account of others. The merger and acquisition transaction cannot involve a public offering. Any offering of securities must be conducted in compliance with an applicable exemption from registration.

4. No party to a merger and acquisition transaction may be a shell company, other than a business combination related company.

5. If a merger and acquisition broker represents both the buyer and the seller in a transaction it must provide clear written disclosure of the potential conflict to the parties it represents and it must obtain written consent from both parties to the joint representation.

6. A merger and acquisition broker may only facilitate a merger and acquisition transaction with a group of buyers if the group is formed without the assistance of the merger and acquisition broker.

7. Buyers or a group of buyers in a merger and acquisition transaction must control and actively operate the business acquired with the assets of that business. In this regard, control will be considered to be achieved if the buyers have the power directly or indirectly to manage the company or the policies of the company through ownership of securities by contract or otherwise. Under the view of the SEC, a buyer could be considered to actively operate an acquired company simply by possessing the power to elect executive officers and approve annual budgets or by service as an executive or other executive manager, among other things. The necessary control will be presumed if at the completion of the transaction the buyer or group of buyers has the right to vote 25% or more of the class of voting securities; has the power to sell or direct the sale of 25% or more of a class of voting securities; or in the case of a partnership or limited liability company has the right to receive, upon dissolution 25% or more of the proceeds from the dissolution, or has contributed 5% or more of the capital to the transaction. In addition, the buyer or a group of buyers must actively operate the company or the business acquired with the assets of the company.

8. No merger and acquisition transaction can result in the transfer of interests to a passive buyer or a group of passive buyers.

9. Any securities received by the buyer in the merger and acquisition transaction will be restricted securities within the meaning of Rule 144(a)(3) of The Securities Act.

10. A merger and acquisition broker must meet the following conditions:

(a) The broker has not been barred from association with a broker dealer by the SEC or any state or self-regulatory organization.

(b) The broker must not be suspended from association with a broker dealer.

These rules make very clear who will be entitled to the exemption provided in the no action letter. As a result of these changes, business brokers and merger and acquisition brokers will no longer have to worry whether or not they will be able to receive their commission in the event that a transaction is ultimately cast as a stock purchase. The SEC’s actions in this instance are grounded in an understanding of the realities of the typical sale of business transaction. The truth is that those transactions are structured on the basis of accounting or tax considerations, and not on the application of federal securities laws. The sale of a business between sellers and buyers of privately-owned companies are qualitatively different in virtually every respect from traditional retail or institutional brokerage transactions.

We are encouraged that the SEC recognized these distinctions. This decision will clarify a tricky area of the law and provide appropriate relief to business brokers and mergers and acquisition brokers who work in this area.