Business transactions include the following: an asset purchase of a business; a purchase of a percentage membership interest in an LLC or stock in a corporation both of which are purchases of assets subject to liabilities; the division of a partnership or LLC where each partner or member is allocated his or her assets and liabilities; and a merger of two business entities. Business transactions can also be the acquisition or sale of commercial real estate, sometimes subject to a tax free exchange. Let’s look at each of these:
Two important issues to remember here are (1) be sure you have listed all assets correctly (does the Seller own each and every one of these assets?); and (2) are any security interests filed against any of these assets? UCC-1 Financing Statement searches in Virginia should be completed in the Circuit for the City or County in which the business is located and at the State Corporation Commission in Richmond, Virginia.
Purchasing a percentage of an LLC’s membership interest or stock of a Corporation.
These purchases are of assets subject to liabilities and need a careful and thorough review of the entity’s profit and loss statements and balance sheets. I like to work as a team with the purchaser’s CPA.
Division of a Partnership
Division of a partnership between or among members and division of membership interests in an LLC between or among members first requires an agreement as to the division. Attorneys for each partner or member can sometimes help achieve an agreement. Once an agreement is reached one of the attorneys will draft the documents which will be reviewed (and possibly revised) by the other member’s or partner’s attorney. One decision to be made is whether (and who) will keep the name of the LLC, Partnership or Corporation or whether all new names will be used. In any case, Articles for the new entity name, or names, will need to be prepared filed with the State Corporation Commission (SCC).
Merger of two business entities is undertaken when the resulting llc/corporation will be stronger in the marketplace or the consolidation will produce a more efficient entity. Merger documents include a Plan and Agreement of Merger, Actions by Consent of the members and managers/stockholders of each entity and Articles of Merger to file with the State Corporation Commission.
Commercial Real Estate Sales and Acquisition
Acquisition or sale of commercial real estate is sometimes in the form of an IRS §1031 tax free exchange between properties. The tax free exchange rules are strict and have absolute deadlines for the replacement property to close. Usually an attorney will work with the client’s CPA and an intermediary who holds the funds from the “sale” of one property, pending the “purchase” within 6 months of another property or properties.