How to Use UK Insolvency Information to Buy a Distressed Business
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We are regularly approached by people looking to buy a business out of insolvency. Our initial question is always – “what type of business are you looking for?” When the response is “any” I get very worried!
There are literally hundreds of different types of businesses out there. Do you know enough about them all to be able to save/rescue/turnaround and drive ANY type of business? Remember this is a failed company – its future depends on an immense amount of hard work, some luck and generally your money.
So set up a target “term sheet”, i.e. what type of company do you want to acquire, where in the country, what size and what markets is it involved in? Set up a target price structure, and make sure that you have the money or know a good source of the funding needed. Then prepare an asset/means report. Most IP’s will look to see if you have the means available to buy their client’s assets. Organise a letter from funders, banks, and proof of means should then be available quickly.
Who will run the company – YOU? If yes, how many days a week do you want to work in, or more pertinently ON, the business? If you are not going to be available to run it – do you have people available who can run it for you?
Warning! Be prepared to lose all of your investment. Secondly, do not rely upon buying an insolvent business as your only source of future income or investment!
Follow this guide and then you will have a better picture of the type of business you are aiming to buy.
Tell them your target business types and send them a synopsis of what you are looking for. Every receiver, administrator or liquidator should market the assets or businesses they’re working with. So if you get on their distribution list you will get early notice once they’re appointed. Soon you will have a flow of opportunities coming in. Make sure to have some early discussion about what the issues are and the time frame the office holder is working to.
Once you have some opportunities I would suggest using a careful evaluation method. You may wish to design your own mini “due diligence” approach to sift opportunities initially. NB this cannot replace proper due diligence if you decide to make an offer!
Is it a deal to buy the assets and goodwill? Its very unlikely that you will buy the company or the debtor book, but you should consider work in progress, stock, assets (financed or unencumbered). Then ask if the deal is one payment, deferred consideration or a mixture of upfront and deferred. It’s often possible to get a time to acquire deal. But the office holder will generally want a lump up front to cover his costs. Get access quickly to do due diligence. This is a must: walk around the business, feel it, touch it and ask lots of questions of anyone who will talk to you within the business. Find out what went wrong: has the business lost its best customers, can it supply cost-effectively in future, what HUMAN assets walked out the door when the IP came in?
Will the hoped-for new product/service ever get off the ground? Is the management motivated or simply serving their time while looking for a better job? How much working capital is required? Do your forecasting for the new company based on sensible numbers not pie in the sky. How much money will the new company need for working capital after you have paid for the assets? No point in buying it and running out of cash!
The main question! Generally, an IP will use a professional valuer to assess what the assets are worth in a forced sale. You will not get access to that figure, so consider using your own knowledge or that of a friendly valuer to help assess what the assets might be worth. Then set a price that you think is fair and that you are prepared to open at. Set a maximum price and do not go over that if the IP comes back saying he has higher offers and are you prepared to bid higher. By the way, they always do!
“Don’t over pay” is easy to write but hard to make work in practice. If your offer is accepted, ALWAYS use a lawyer to advise you and check the deal and ask about technical issues below.
S216 Insolvency Act 1986 precludes the reuse of trade names unless the use is permitted by the court or office holder, and the acquirer was not involved with the failed company previously. be careful of this – if you take on the directors/managers they could face criminal charges if this is not addressed properly.
By acquiring a business you will probably have to honour the employment contracts of ALL of the employees. This can be another legal minefield – so get advice on it, early. Financial Assistance Rules (s151 – 153 Companies Act 1986) Make sure the deal complies.
Make sure that the landlord is involved in discussions – will they offer a new lease? Will you have to put down a rent deposit? How will this affect your working capital needs?
Same goes for secured asset lenders: will they novate the deal to the new company? Will major suppliers supply? Are customers prepared to work with you? Summary These are just some of the key issues in buying a business out of insolvency and it’s a must to do your homework very carefully. Remember don’t get emotionally attached to the deal. Its just worth repeating again that this is a failed company, its future depends on an immense amount of your hard work, some luck and generally your money.
Finally, if it smells it’s usually off! So walk away and save your money for another opportunity.