There are basically two types of deals when purchasing a business: a purchase of the assets of the business, or the purchase of the stock of the company (assuming it’s a corporation). In addition, a merger is a special type of stock acquisition, as discussed below. In general, sellers prefer to sell the stock of a business, while buyers prefer to purchase the assets.
Purchasing the assets of a business rather than the stock offers the buyer some tax advantages, as well as the option to acquire only the desirable assets and skip the liabilities.
The buyer of the assets of a business does not generally inherit the liabilities of the business, while the stock purchaser does. This is a critical factor in deciding which type of deal is best for you.
But there are some particular instances that can tip the scales in favor of the purchase of stock. Certain contracts are not assignable, so if you wish to benefit from them, you may need to purchase the stock of the company.
Engaging in due diligence should help you determine whether the business’s contracts are assignable, and whether the contracts will continue if the stock of the company is purchased by you. Many contracts with major companies, businesses, and vendors have specific clauses dealing with the event of a sale of the assets of that company, and the event of the sale of the stock.
Most sellers of a business will prefer selling stock, as they often will be able to obtain tax favored capital gains treatment on the sale.
Stock acquisitions can be accomplished through direct stock purchases from all of the selling shareholders or through a merger.
A merger is a creature of state law (so you have to follow the legal rules in your state) that results in one entity being combined (or “merged”) into another entity. After the merger, the merged out entity no longer exists, and the business of the combined entities continues in one company.
Mergers can have certain tax advantages. For example, you may be able to accomplish a tax-free merger, where the selling shareholders receive stock in another company and don’t have to pay immediate tax on the sale of their shares. Mergers also have the advantage of not requiring that every shareholder approve the deal.
But mergers are complicated, and you will want to have the guidance of an experienced corporate attorney.