Connect with us

Start-up Advice

Buying a Business? Buy Right!

Understanding what it means to buy a business vs buying a company.

Sarah Lawrence

Published

on

Buying-a-Business-Start-up-Advice

In the commercial world, the terms ‘company’ and ‘business’ are often used interchangeably. Statements such as “my business employs 20 people” or “my company manufactures handbags” are commonplace, but what exactly do they mean?

In law, a company and a business are distinct concepts, and the purchase of a company has different legal consequences to the purchase of a business.

A clear understanding of the two is useful to businesspeople looking to obtain control of a particular business. This article provides an overview of how a company differs from a business, with reference to some of the key consequences of buying a business versus buying a company.

The tax and employee-related aspects of the two transactions are not dealt with, although they are important aspects of each transaction. For this and other reasons, the following should not be understood as legal advice.

What is a company?

A company is a legal concept, intended to promote commerce by allowing people to conduct business without personal liability. A company, once validly registered in terms of the Companies Act, No. 71 of 2008, has legal personality – in other words, it is able to transact in the same way as a natural person.

Just as a natural person owns assets, and is directly liable for his debts, so a company may also own assets and is directly liable for the debts that it incurs, generally to the exclusion of its shareholders.

What is a business?

A business is simply a collection of assets, both physical and non-physical, which generate income, as well as liabilities (debts)  that have arisen in the course of trying to generate that income.

A shoe manufacturing business, for example, would consist of:

  • physical assets, such as machinery and equipment;
  • contractual relationships with trusted suppliers and important customers;
  • intellectual property, such as shoe designs and trade marks (its brand name, perhaps);
  • accounts receivable and cash in the bank.

In addition, a number of debts might have arisen in the running of the business, such as amounts owed to suppliers for raw material, rental amounts owed to the landlord of the premises from which the business is conducted, and amounts owed by way of salary to people who work in the business.

A business is not a legal person and has no legal personality. It cannot enter into commercial transactions in the way that a natural person or a company can. In other words, a business cannot sign a contract. Rather, a business will be owned and operated either by a natural person (in other words, a sole proprietorship) or by a legal person such as a company.

A useful way to avoid confusing a company with its business is to remember that a company could own and operate a number of different businesses.

Acquiring control of a business

Let’s assume that Mr Smith has his eye on a successful shoe manufacturing business. The shoe business is owned and run by a company, Shoe Co Proprietary Limited. Shoe Co has two shareholders, Mrs and Mrs Sole.

Mr Smith decides he’d like to own the shoe business and run it for his own benefit. He has two options. He could buy all of the shares in Shoe Co from Mr and Mrs Sole, thereby acquiring the company which owns and operates the shoe business. Alternatively he could buy the shoe business from Shoe Co itself.

Buying the shares

Should Mr Smith choose to buy all of the shares in Shoe Co from Mr and Mrs Sole, he will become the only shareholder of Shoe Co. Mr Smith will therefore be in control of Shoe Co and all of its operations (including the shoe business). In this scenario, Mr and Mrs Sole will be the sellers, and Mr Smith will pay the purchase price for the shares to Mr and Mrs Sole.

The key disadvantage of this approach for Mr Smith is that Shoe Co, as a legal person, will continue to be liable for all the debts incurred by it before Mr Smith took over. Shoe Co may, for example, owe significant amounts to suppliers, to the Receiver of Revenue, or to other third parties, which Shoe Co remains liable to pay.

The existing debts will affect Mr Smith’s back pocket because, no matter how successfully the shoe business is run after he takes over, the amount available as profit for dividends to Mr Smith will necessarily be less after Shoe Co has paid its various debts.

It is for this reason that prudent purchasers insist on a due diligence investigation being conducted into the affairs of a company, prior to acquiring the shares. The purchase price for shares in a company burdened by significant debt should be correspondingly reduced.

As mentioned earlier, a company can own a number of businesses. If Shoe Co owns more than one business, buying the shares in Shoe Co is not the best way for Mr Smith to obtain control over the shoe business, because he will obtain control over all the other businesses operated by Shoe Co, at the same time.

Buying the business

The other option is for Mr Smith to buy the shoe business from Shoe Co itself. In this scenario, Shoe Co is the seller, and Shoe Co will therefore receive the purchase price. The shareholding in Shoe Co remains unchanged, and Mr and Mrs Sole continue to be its shareholders.

In this scenario, Mr Smith is buying the collection of assets which make up the shoe business from Shoe Co. He might be taking on some of the shoe business debts as well. The key advantage of this option for Mr Smith is that he will be able to negotiate which of the shoe business debts he will take over, and which debts will remain behind with Shoe Co.

Mr Smith might agree, for example, that he will assume and be liable to pay debts due and owing by Shoe Co to its suppliers, as long as those debts are no more than three months old. All other debts will remain with Shoe Co, and it will continue to be liable to pay those debts.

By buying the shoe business out of Shoe Co, as opposed to buying the shares in Shoe Co, Mr Smith protects his commercial operations and his finances from Shoe Co’s debts and liabilities.

Of course, the extent to which Mr Smith is prepared to assume Shoe Co’s debts will likely affect the purchase price payable for the shoe business. In general, the more debts the purchaser agrees to assume, the lower the purchase price for the business.

Buying the shoe business out of Shoe Co will also work well for Mr Smith where Shoe Co owns a number of businesses which Mr Smith has no interest in acquiring. Only the shoe business will transfer to Mr Smith, while the rest of Shoe Co’s operations will remain behind.

Commercial circumstances

The decision as to whether control of a business which is housed in a company is best obtained by a share purchase or the purchase of the business itself is always dictated by the commercial circumstances of the particular transaction.

In very general terms, purchase of the business is more appropriate when:

  • the buyer does not wish to take over all of the company’s liabilities, or there is a danger of undisclosed liabilities in the company;
  • the buyer wishes to acquire only some of the company business assets and not all of them;
  • the company owns a number of businesses and the buyer is only buying one of them; or
  • there are difficulties with acquiring the majority shares in the company, perhaps due to pre-emptive rights, or where certain shareholders do not want to sell their shares.

The purchase of the shares in a company might be more appropriate when:

  • the success of the business depends on certain agreements which the company is not allowed to transfer, such as a licence agreement, a supply agreement or an important lease;
  • one of the business assets is a property, which the purchaser wishes to acquire without going through the actual transfer process;
  • the sellers insist on selling their shares in the company, rather than selling the business out of the company; or
  • tax considerations dictate that a sale of shares will be more tax efficient than a sale of business.

The agreements

Since the transactions are different, the agreements regulating each transaction are also different. A sale of a business agreement will typically cover aspects such as:

  • which assets are to be sold, and which liabilities (if any) are to be transferred;
  • whether any consents or approvals are required before important contracts may be transferred;
  • the purchase price for the assets, which frequently includes a portion for goodwill;
  • the date upon which the purchaser will become the owner of the business;
  • the manner in which delivery of the assets will take place;
  • whether the transaction will be zero-rated for VAT, provided both the seller and the purchaser are registered VAT vendors;
  • whether the transaction is to be advertised in terms of section 34 of the Insolvency Act, No. 24 of 1936; and
  • whether the seller makes any warranties regarding the business, and whether the seller has put a limit on its potential liability to the purchaser, should any warranty be breached.

A sale of shares transaction will typically cover aspects such as:

  • how many shares in the issued share capital of the company are to be sold;
  • whether the sellers have any shareholders loans against the company, and whether those will also transfer to the purchaser;
  • the price to be paid for the shares;
  • whether any approvals or consents are required before the shares may be sold (such as obtaining the consent of any other shareholders);
  • the manner in which delivery of the shares will take place (usually by the seller handing its share certificates and a signed share transfer form to the purchaser); and
  • whether the seller makes any warranties regarding the shares and the company, and whether the seller has put a limit on its potential liability to the purchaser, should any warranty be breached.

In practice, the decision as to whether the purchase of a business or the purchase of a company is more appropriate is determined not only by the factors discussed here, but by tax considerations and considerations relating to the employees in the business, if any.

For this reason, it is usually advisable to obtain legal advice on the best approach under the circumstances.

Sarah Lawrence is a commercial legal consultant at Caveat Legal. She holds a BA in English, Sociology and Industrial Psychology from the University of Stellenbosch, an Honours degree in English Literature from the University of Cape Town, and a BA LLB from the University of Cape Town. Sarah completed her articles at Edward Nathan Sonnenbergs and was admitted as an attorney of the High Court of South Africa in 2010. She specialises in Corporate Commercial Law, with a focus on transaction work.

Start-up Advice

How To Apply Lean Principles To Your Start-up’s Productivity And Time Management

Focusing on one thing at a time is a very good start.

John Rampton

Published

on

starting-a-business

If you’ve recently launched a start-up, I’m sure that you’ve heard a lot about being “lean.” But I’m not here to discuss the methodology popularised by the likes of Eric Ries.

The lean principles from a Toyota exec

I’m actually writing about the term and concept of “lean” that was originally developed by Toyota executive Taiichi Ohno during the reconstruction period in Japan following World War II. The process was so successful that more and more organisations around the world began to embrace it. However, it didn’t hit the mainstream until James P. Womack and Daniel T. Jones released their book Lean Thinking, in 1996.

Applying “lean” to productivity in start-ups

Today, lean principles have been applied to almost every industry both large and small scale. For instance, lean principles in the healthcare industry have been able to reduce costs, while improving efficiency. On a smaller scale, employees have used these principles to organise their workspaces.

Related: What Business Should You Start In Africa?

Here are four ways you can apply lean concepts to your startup to improve both productivity and quality.

1. Improve your workplace using the five principles of lean

According to the Lean Institute, which was established by Womack and Jones in 1997, there are five core principles of lean:

Value: Value means putting yourself in your customer’s shoes and knowing what their needs are. This helps you determine timelines, pricing and expectations instead of constant trial and error. For your team, letting them know how they fit into the bigger picture can keep them motivated.

Value stream: Value stream is where you create a “value stream” of all the steps and processes required in getting the final product or service to your customers. This could include design, production, delivery, HR and customer service. Knowing this information allows you to eliminate any wasteful steps.

Flow: After you’ve removed any unnecessary waste from the value stream, you want to make sure that everything runs smoothly. Flow means not having any interruptions or delays. The flow involves breaking down steps, leveling out workloads, creating cross-functional departments and training your team so they can develop multiple skills.

Pull: When flow improves, so does the time it takes to get your goods or services to customers. As a result, they can “pull” whenever needed so you’re not constantly under- or overproducing inventory, content, etc.

Perfection: Even after successfully completing the first steps, you still need to constantly keep working to improve processes so that you can eliminate waste. Perfection may be an exalted goal in whatever endeavour we are pursuing – but we still must always be moving forward toward being the best and achieving the best.

2. Use the concept of 5S to get yourself organised

5S stands for sort, set in order, shine, standardise and sustain. You can use this concept to organise your workspace so you and your team are more productive by doing the following:

  • Remove any items that you no longer need (sort)
  • Organise your remaining items so you’re more efficient (straighten)
  • Keep your workspace clean and tidy so you can find items and identify problems more quickly (shine)
  • Color-code and label files and calendars to make you more consistent (standardise)
  • Develop repeatable behaviours and habits that will keep your workplace clean and organised, such as completing one task before moving onto the next (sustain).

You and your team – even if they’re virtual employees working from a home office – can get started by throwing away anything unneeded. Place files into cabinets – colour-code your calendars – and keep items you frequently use nearby.

But these principles aren’t just limited to physical items. Digitally, you can use a project management system to assign tasks, quickly see the progress of projects and share files and comments in one organised dashboard.

3. Standardise your work to become more efficient

In manufacturing, there’s a standard process for everything. The reason? By doing something the same way time and time again you will eliminate waste since you’re not constantly trying out new techniques. Standardising also prevents errors and forgetfulness because there’s a checklist for ever step of the journey. For example, when a car is on the assembly line, it can’t move forward if someone forgot a bolt or installed a faulty steering wheel.

4. Standardise what makes sense

Start by keeping a time log to see when you’re most productive and how you’re spending your time. You may notice that you’re most productive in the mornings. If so, that’s when you should work on your most important task.

If you discover that you’re checking your email and social accounts too often, schedule specific times throughout the day to check them. To prevent wasteful meetings, you can standardise meetings. Make sure these meetings are necessary and include only key people pertinent to the information. Keep all meetings as short and concise as possible.

Get into a good flow to optimise your and your team’s performance

Flow is simply how work can progress through a system. When your system is running smoothly, flow is good. When flow hits a snag, it slows down the process and waste occurs.

Manufacturing facilities make it a point to ensure that the flow is good. Unless it’s an emergency, production lines rarely stop running. Everyone has a specific job to do, and that’s all they’re focused on. That’s not the case at your start-up. You must wear multiple hats, as well as deal with constant interruptions. How many times have you been in “the zone” and gotten distracted by a phone call or have no choice but to go put out a fire?

Remember focus

One way you can improve flow in your start-up is by focusing on one thing at a time. That means no more multitasking. Give your 100 percent focus to what you’re working on at the moment and then move on to your next task. This may take some self-discipline. But you can start by turning off all push notifications, closing your door, block scheduling and setting boundaries.

You can also help your team improve their flow by setting “do not disturb” zones and time frames. Another tip is to schedule a “no meeting” day. This way you and your team can maintain focus without getting interrupted by a meeting.

Finally, you may want to consider outsourcing and delegating certain tasks. Instead of worrying about your inbox all day, hire a virtual assistant to manage your email. If you need to get your books in order, then bring in a bookkeeper. This frees you up to work solely on growing your startup.

This article was originally posted here on Entrepreneur.com.

Continue Reading

Start-up Advice

Which eCommerce Platform Should You Build Your Store On?

This is an important decision to make and with so many options out there it can become a bit overwhelming and confusing to decide which platform is the best option for you. So which platforms are best suited for a South African eCommerce entrepreneur?

Warrick Kernes

Published

on

ecommerce-platforms

Having owned and run websites using XCart, Magento, Shopify and WordPress, I’ve made enough mistakes and learnt enough lessons along the way to be able to help guide you to make the right decision about which platform is right for you…

When looking for options you’ll come across platforms like Prestashop, WordPress, WIX, Shopify, Squarespace, OpenCart, Magento, Shopstar, OneCart, ShopOn, LiquidBox, BigCommerce and endless more. All of which are trying to convince you that their platform is the best for you to use.

Reading international blogger reviews is helpful but they don’t account for how these website platforms perform in South Africa. They don’t review what the support is like in SA and which local software services are compatible. You see, these points are often neglected until you need them further down the line and only then find out how important it is that the platform you’re running your store on is made to work in SA.

Having worked with all the major website platforms I understand the importance of website support and how the site integrates with the local services which will make your life easier and your website better. Services like this include integrations into Rand (ZAR)  based payment gateways, integrations into local courier services, API connections into marketplaces like Takealot and Bid Or Buy, and API connections into price comparison sites too.

Related: 6 Steps To Building A Million-Dollar Ecommerce Site In 60 Days

The final factor to consider is the reputability of the website platform itself. There are many new and upcoming website platforms which I would love to support but when it comes to choosing a platform on which I’ll be building my business I need to know that I am going to be selecting a world-leading service provider.

So with this in mind I can help to narrow down your options to two platforms being WordPress with WooCommerce and Shopify. Which of these two is right for you will depend on how much you value your time.

Shopify will cost you $29 per month but the ease-of-use is such that even a novice can get a site live within a week. Operating WooCommerce on WordPress is complex for beginners and it will take you much longer to figure it all out before you can take your site live but the plus side is that it is free to use.

So ultimately you need to consider which of these two is right for you and your business but the most important thing is that you don’t spend any more time researching, take action and get started sooner rather than later so you can start to grow your online empire.

Continue Reading

Start-up Advice

6 Ways Starting A Business Is Like Raising A Child

Here are six ways that embarking on your own entrepreneurship journey is like raising a child.

Catherine Black

Published

on

starting-a-business

While you may think work and parenting are worlds apart, when it comes to starting a business versus having a baby, the two have more in common than you think.

After all, both involve bringing something new into the world, preparing for the unexpected, and riding the storm when things don’t go as planned. Here are six ways that embarking on your own entrepreneurship journey is like raising a child:

1. It involves new expenses

From nappies and school fees to food and clothing, there are a whole lot of new expenses involved when it comes to kids. In the same way, starting a business also involves various costs – whether it’s paying accounting fees, setting up your website, buying stock or employing people. In both instances, having a good financial plan in place can go a long way to help you manage these expenses.

Related: How To Start A Business With No Money

2. It’s an emotional rollercoaster

Parenting invariably means you’ll experience every emotion under the sun, from unmatched joy when they’re born, to frustration at toddler tantrums, to wonder at seeing their little personalities develop. The same goes for a new business: Expect a range of emotions, from the highs of getting your first customer, to the satisfaction of making a profit, to anxiety if the market doesn’t respond to your product as you envisioned.

3. Expect the unexpected

Few things are as unpredictable as babies: One minute they’re gurgling contentedly, the next minute they’re crying for reasons you may or may not know. Just like babies, businesses can be highly unpredictable too. Product prototypes can fail and cause delays, employees get sick, an unforeseen tax bill could arrive on your desk – you’ll need to get comfortable with expecting the unexpected. And, if you run your business full time, you’ll need to bid farewell to your predictable monthly paycheque too (at least in the beginning).

4. It requires stamina

Late night feeds, helping your child with homework, washing, cooking, cleaning, answering all their burning questions – there’s no parenting “off” switch. In the same way, being an entrepreneur means it’s hard to stop thinking about your business at the end of the day as you would with a regular 9 to 5. This constant call for attention means it’s crucial to schedule in some downtime for yourself so that you get time to decompress and refresh.

Related: What Business Should You Start In Africa?

 5. You’ll need safeguards in place

While their immune systems are immature, young children get sick, which typically involves trips to the doctor, medication and possibly even the odd hospital stay. Having a good medical aid means you’ll be financially prepared for these intermittent expenses. And, just as you should ensure your child has the right medical cover, your business and your employees should also be covered properly. Fedhealth is one example of a medical aid that specialises in providing medical cover for SMMEs.

6. Love will get you through

As hard as parenting can be, the enduring love most parents have for their children means they keep caring for them day after day, no matter how exhausting it is. Similarly, if you love the industry your business is in and the work you do, you’ll have the fortitude to keep at it over the long term.

Both parenting and starting a business are hard work, but they’re hugely rewarding too. With both of them, it’s true that what you put in, you get out. Seeing your child grow into a well-adjusted, caring adult can be as satisfying as watching your business mature into a something that’s profitable and self-sustaining. Upon reaching these milestones, most people will agree that the journey to get there is definitely worthwhile.

Continue Reading
Advertisement

SPOTLIGHT

Advertisement

Recent Posts

Follow Us

Entrepreneur-Newsletters
*
We respect your privacy. 
* indicates required.
Advertisement

Trending