Whether you’re buying or selling a business, having a broker on your side can make the difference between a successful outcome and a nightmare. However, not all business brokers will be suitable for your specific situation. Use the tips below to choose the right broker for your needs.
You’ve come to the decision that buying a business or selling your business is the path that you want to take. The best piece of advice, although biased, I can offer is to retain the services of a business broker or business transfer adviser. Although business brokers usually work on behalf of the seller, there are sell-side business brokers and buy-side advisers. Even if you’re a buyer and you decide not to retain the services of a business broker or transfer adviser, you’ll receive the benefits because a business broker is working with the seller.
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.