Rochelle Friedman was a corporate lawyer representing some of the top products and brands in the world. A few years ago she jumped ship and started the Walk Law Firm. Now more than 50% of her business is representing both buyers and sellers in transactions that involved the transfer of an Amazon Seller Account.
Because of her specialty and expertise, I wanted to have her on the Podcast to share her approach, and what she sees other brokerage firms in the industry doing. In today’s Podcast she covers the risks and pitfalls of transferring an account through an asset sale, and talks about the different types of transactions she sees occur.
Rochell also delves into the two big “stomach ache” clauses in a typical asset purchase agreement, and how to address them up front so the due diligence and negotiation process is successful.
As you've heard us often say…”don’t decide to sell, plan to sell”. The same holds true with legal matters. Make sure you are properly incorporated, that your trademarks and copyrights are up to date and transferrable. All of these are part of the assets of your business, and hiring a firm like Walk Law Firm to review them in advance of a sale is advisable.
Episode Highlights:
- Learn Rochell’s approach to transferring an Amazon account. Hint...it is the same as ours.
- Transferring non-US accounts is the same process.
- Both buyers and sellers need to be happy at closing, or a deal falls apart.
- Having a qualified contract attorney truly matters.
- The same attorney will fight differently if their client is the seller vs. the buyer.
- There are TWO MAJOR stomach clauses in every APA. Address them early on in negotiations.
Transcription:
Mark: Joe how are you?
Joe: I'm doing good Mark. How are you doing today?
Mark: You know ever since you got back from Italy you are kicking my butt again when it comes to the number of interviews you're doing for the podcast. I think like three to one, four to one as far as the ratio is concerned and I'm sure our listeners are ecstatic.
Joe: I don't know. I actually have the easy part. I just do the interviews you do all of the stuff in the background so thank you and I appreciate it. I just do the interview. And this time for this show I don't … falsely, folks, I talked to an attorney and it was actually a really good call and here's why I had; her name is Rochelle Friedman, she's from Walk Law Firm and you know look with physical products businesses and the transfer of an Amazon Seller Account everybody has questions about how to go about doing it, whether it's a US based account or one that's international. And I came across Rochelle through some other folks that I worked with and I had a call with her. And I just picked up the phone and I called her and chatted with her. Look she does close transactions for Quiet Light Brokerage, for Empire Flippers, for Website Closers and you guys know who they are so it's okay to mention them right? And I know she does that so I wanted to confirm with her what processes, what she does and shockingly Mark it's the same way that we do it believe it or not. And she goes into detail about it, and she goes into great detail about it. Not only that she talks about contracts in general, she represents both buyers and sellers. She's a contract attorney that came from the corporate world representing businesses, every day household businesses, she was their attorney a very good one in the corporate world last went out on her own and now represents both buyers and sellers in transactions. And I think it's worth listening to. I think it's really really important as you and I have talked about how important planning is. Don’t wake up and decide to sell but plan to sell, same thing should be said for an attorney; talk to one. Get your ducks in a row and make sure that you're doing the right thing as you go into your transactions you can do it with confidence.
Mark: I'm gonna put you on the spot because you said we're going to address in this podcast episode how do you transfer an Amazon business and how are people doing it pretty much across the board. But for anyone that already knows how to do that or has done that what else do we cover in this episode?
Joe: She covers the two big stomach ache clauses in contract negotiations. That being the non-compete and the indemnification clause. I think the indemnification clause is the bigger of the two because we do a pretty good job up front addressing the non-compete. And so if you do that work up front in the client interview and work with the seller on that to make sure they understand what a non-compete is and make sure there aren't going to be any issue is never really a problem. The hard one to wrap your brain around, your hands around is the indemnification clause and what that is from a seller's standpoint. You sell your business you think you're done, you get 100,000 200,000 a million dollars in your bank account and you move on about your merry way. You sleep really well at night because you got a bunch of money in your account. Well, your buyer's attorney is going to have something in there that is going to have them reach back into your bank account and take some money out if you lied or cheated or stole or did anything fraudulent in anyway. Now you should sleep well if everything was done right but if there's anything that wasn't they're going to put that in there. And they're gonna put that in there anyway and the big question is how long is that grace period for? Is it six months or 12 months or 18, and then how much is it for? And Rochelle you know towards the end of the podcast she laughs and she chuckles and she talks about how … well she has one standard when she's representing the buyer and she has a completely other standard when she's representing the seller so it's good to hear from both sides for sure. But the stomach ache clauses are really important in there as well.
Mark: That's fantastic. And those are easily interest almost guaranteed at it every time we send out a purchase agreement on those two clauses.
Joe: Guaranteed.
Mark: You always see stuff. All right let's get in to see what she has to say about all of this including in the indemnification stuff. Let's get to it.
Joe: Hey folks it's Joe from Quiet Light Brokerage and today I've got Rochelle Walk from Walk Law Firm on the line with me today. How are you doing Rochelle?
Rochelle: I'm doing great Joe, how are you today?
Joe: I'm doing well. I have a sister in law name Richelle so if I mispronounce your name during the podcast at all today that's the reason why. I'm apologizing in advance.
Rochelle: Not a problem at all.
Joe: As we talked about a little bit before recording we don't do fancy introductions so if you could just give the audience a little bit of background on yourself. Tell them about who you are and the work you do that'd be great.
Rochelle: Sure. Thanks, Joe. First off all thanks for having me on, I appreciate the opportunity. My background is actually a little bit complicated because I have been practicing law for 33 years but unlike a lot of other lawyers, most of my practice has been as a general counsel or as the chief administrative officer of very large public companies. So most of my time spent as a lawyer has actually been as a business person. And I like to explain myself as a business person who happens to also be a good lawyer.
Joe: Excellent.
Rochelle: And when I started this firm I was at the point where I was leaving a major public company, decided I wanted to do something different, and decided I wanted to use the same skills I garnered as a business person and lawyer for really large public companies and turn it into something that would work well for small to mid-size companies. So during my years in my big company world, I worked heavily in consumer products. I was head of license brands for Sherwin-Williams, brands like Martha Stewart, Ralph Lauren, I worked with Dutch Boy, I worked with Thompson-Minwax, Krylon, very famous brands. And then I left there and I was at a company called Oglebay Norton it was mining and minerals. We had clients and customers like Home Depot but we also had heavy industry as clients and lots of engineers. And then ultimately I went to a company called Anchor Glass and it was consumer glass, some of your favorite beverages, as a matter of fact, would be bottled in the glass containers whether you know beer, wine, Maker's Mark you know some famous brands. So my career has always been around famous brands and lots of retail. So when I looked at what I could do seven years ago when I started this practice, I thought about it and said I can really understand consumer brands. I really understand branding. I really understand intellectual property but it's a new world and we need to be able to do it online. And I dove into e-commerce understanding how Amazon works, how eBay works, how Jet works, of course, some of those came later, how Walmart.com as a marketplace work … Walmart used to be my customer at Sherwin-Williams and now here at Walmart.com it's a completely different animal and I dove into that. My practice has always been heavily mergers and acquisitions so about 50% of our practice is the mergers and acquisitions of businesses. And seven years later that has become a huge footprint of Amazon sellers, online sellers, e-commerce businesses that are seeking to flip. Entrepreneurs who have created … you know they have created great brands but in order to take them, to exploit them to the next level they need a lot more bandwidth. And it's, therefore, their time to move out of that business. Having spent a lot of years buying and selling Mom & Pop tank stores for Sherwin-Williams and Mom & Pop paint brands and Sundry brands it's no different, it's just now we're doing it through e-commerce instead of bricks and mortar.
Joe: Okay. So about 50% of your business is the M & A side, the other side is what; working with people on intellectual property, branding, things of that nature?
Rochelle: We're like their outsourced general counsel. It can be everything from intellectual property and branding to possibly contracts, employee issues, independent contractor issues, tax issues-
Joe: Okay.
Rochelle: Really almost anything they need. Leases, fire agreements, everything you might imagine a general counsel doing.
Joe: I got you. So for folks listening, the reason I have Rochelle on the line today is because a lot of you have asked during the buy or sell process if Quiet Light can recommend an attorney. We have several that we work with; Shawn Hussain at the Ecom Law Group is terrific. We work with him often and Rochelle knows him and came across Rochelle and we were talking about the transfer process of an Amazon business. And I know now that you've worked with all of the website business broker firms that are at a high level like Quiet Light and you've been on both sides of the transaction.
Rochelle: Right.
Joe: Do you prefer or do you most often work with the buyer of a business, representing the buyer in contract negotiations or do you find yourself on the seller's side more often?
Rochelle: It's really about equal and we don't really have a preference. We're perfectly prepared to work with both buyers and sellers. Buyers and sellers have different needs and one of the things that I think we're pretty good at and just so you know we're a firm of three full time lawyers. We are about to affiliate with a bigger national firm who also does quite a bit in e-commerce and emerging business and we can … I'm not prepared to tell you who and the details of that but that's coming down the pike so we'll have a lot more bandwidth. But what's important about us as we understand the difference between what a buyer needs, what a seller needs, financing it; if both you're a buyer and a seller how it's being financed matters, and understanding how this Amazon accounts transfer. Sometimes transferring the account actually isn't in your best interest or the buyer, sometimes it's the only solution for the buyer and-
Joe: Let's talk about that-
Rochelle: You have to assess that.
Joe: You know that the listener's ears just perked up because we're talking about the transfer of an Amazon account.
Rochelle: Yeah.
Joe: You and I both know as does everyone who has an Amazon account that the Terms of Service says that the Amazon account is not transferrable and that-
Rochelle: Generally.
Joe: Right there's a bracket in there that says generally. To me logically it never made sense that you could build an amazing brand on Amazon and never be able to sell that. And I've had experience direct with Amazon and they've proven that they do in fact allow the transfer of accounts but-
Rochelle: Of course.
Joe: Tell us, tell the audience, tell me how have you seen an Amazon account most often transferred with the different transactions that you've done with the top websites and business brokerage firms.
Rochelle: Sure you know a lot of times it's very much behind the scenes. If you are actually selling the ownership interest in the business you're not really transferring the Amazon account. Although Amazon may disagree with that but you're really not transferring the Amazon account, you're transferring the ownership interest in your business. And the only thing you're doing with the Amazon account is actually maybe changing an EIN if … depending on what you're buying and if you're getting the EIN of the new business and probably changing where you want the banking to go. I've even had situations where we haven't had to change the banking at all. If you're buying the assets however and you're leaving the ownership interest of the business behind by getting all of the assets of the business you're going to need to go in and possibly change the name of the owner of the account, change the … certainly, the EIN or the Employer ID Number, change the bank account number, and there may be some other things you're going to change as well. But there are some things that we recommend sellers do and frankly, it's better for buyers to help ease the pain of that process. First of all, we've never had Amazon stand in the way. As a matter of fact, if you text Amazon they'll even tell you how to go on and do it. So as much as they say it's generally not transferrable they actually don't get in the way as long as what you're doing is not disruptive. So where will they get in the way? If the IP address of the person making the change is different than the IP address of the person who has been running the account Amazon is going to have a big flag for fraud and they will get in the way and they may shut down the account. What they usually will do is let the sales continue. However, you can't access your account until somebody verifies that it was an intentional change. And they use to give you a couple of weeks to do that verification although my clients are typically through that verification process within a couple of hours. It may take Amazon a few hours to flag you but watch for the flag it's usually going to come to the seller. One of the great ways to avoid any of those issues, if you're using a VPN to access your account in the first place then you transfer the account with the VPN it has all locked in. You're not changing the IP address and that way when you do this transition there is no issue of the buyer or the seller plugging in the information as long as they're all going through the same VPN. Similarly, let the seller make the changes. Generally, the seller makes the changes. If it's a big enough account Amazon may flag it for fraud anyway but within a couple of hours the seller will get that email or will get contact from his or her account rep and that pain will be immediately fixed. We do it all the time and we haven't had an issue.
Joe: So do you end up having to have a contact yourself with Amazon if there's an issue or is it just something that the seller contacts them and it's resolved eventually?
Rochelle: So my rule of thumb, leave your lawyers out of Amazon at all times. We may be in the background helping draft the e-mails, helping respond to the emails, they always come from our client who has the most contact with their Amazon rep.
Joe: That's the sellers.
Rochelle: We want-
Joe: That's the owner of the seller account.
Rochelle: Exactly. We want the least amount of disruption in the communications. Amazon really doesn't need to hear from your lawyers. You just need to work directly with Amazon and frankly, it's a fraud detection problem. Amazon doesn't want to be caught where somebody somehow hacked into your system changed your accounts and you later come back and accuse Amazon of having changed your accounts or having diverted your money. So you can't blame Amazon for what they're doing. You just have to be able to work with them and be prepared for maybe a day or two of disruption. But typically we haven't seen it disrupt sales.
Joe: Okay.
Rochelle: We've seen product takedowns disrupt sales but we have not seen that transfer of the account disrupt sales.
Joe: Excellent. Okay. Well let's take a few things, we talked about you're seeing the most method text and then we talked about the VPN and then you talked about … well, I want to talk about different Amazon countries so-
Rochelle: Okay.
Joe: What I've seen in the transfer process is the same. You know we wrote the 10 steps to transfer an Amazon account in 2016 I think and the process that we see is actual phone calls to seller central saying "Hey look I'm transferring the business, one of the assets of my business to the Amazon Seller Account. How do I transfer control to the new owner?" and they do the same thing you just talked about in Texas-
Rochelle: Right.
Joe: They give you written instructions and they'd sent it via email.
Rochelle: Exactly.
Joe: Our clients tell us that sometimes they get lucky; in the 1
st call it works and sometimes it takes 10 calls.
Rochelle: Right.
Joe: At 1
st hold on you can't do that and then on 10
th oh yeah exactly I know what you're talking about, they do it. I've had some chats with Amazon chats do the same thing but you said text. Now do you mean email, do you mean the chats, what do you mean by text?
Rochelle: I mean the chats.
Joe: You mean the chats, okay.
Rochelle: And it's usually the Seller Central chat system and we even have videos and screenshots of the chats that some of our clients have had.
Joe: Okay.
Rochelle: Remember with Amazon Seller Central you are dealing with … I'll describe this way my husband describes pizza. It's only as good as the 16 year old making it; when you order a pizza from a pizza parlor the quality control is a little bit lax. Well with Amazon it's not a quality control problem but the experience of a customer service rep is only what that person has had as experience. And depending on how specific you are, on how clear you are on what you're trying to ask them will depend on how good they are at getting it to the Amazon separate instructions and pulling back and telling you what to do. The more experienced reps are very good at telling you exactly how to go into Seller Central and make the changes.
Joe: I like that. I wonder if on the chats that the more experienced reps answer the chats versus the phone calls. DO you know if there's any data behind that or is that just an assumption?
Rochelle: No, I have no idea.
Joe: Okay.
Rochelle: I have not seen that and I really don't know and remember the chats are being answered by people all over the world.
Joe: Okay same as phone call side too.
Rochelle: Exactly.
Joe: Okay, good. So just to back up a little bit of what you are saying I've had many many Amazon … Quiet Light Brokerage has many Amazon transactions transfer just that very same way. I personally have a situation for folks listening who or had an Amazon account that had a gold status, I don’t know if that exists anymore but it was called a gold status and that meant that. It was old enough and large enough where they had an Amazon representative assigned to their account. So they had somebody they could always reach out to and during that process, they reached out to that person and said "Hey look transfer selling the business one of the assets of the business is my account how do we take care of this?" And that individual went to Amazon legal and said hey look this is what we're doing and Amazon Legal provided a form-
Rochelle: Right.
Joe: And all they wanted to know was the name of the buyer. And it's always been a theory that Amazon wants to make sure that those that have been banned are permanently banned so they wanted to know the name of the buyer so to do that search to see if they've been banned. That's all they did was check the name of the buyer and the transfer went through with no problem at all. So just backing up what you said there. The VPN, I had Norman Farrar on the podcast, Norm is an expert in SOP's and marketing Amazon. He guested on many many podcasts. Norm recommended the same thing and for those that are listening that do a lot of traveling to different events and whatnot, you're all at mastermind groups and you're getting advice if everyone is using the local VPN and there's a hundred people that get it sitting in listen to an expert and they get a great idea they'll all log on to their Amazon account using that IP address in the local wireless, local hotel, or whatever it might be-
Rochelle: Right.
Joe: The Amazon bots are gonna go crazy and you're all going to get shut down.
Rochelle: Exactly.
Joe: So Norm does that. Norm recommends VPNs. Rob Green who does the same thing, high level seller, a lot of podcasts, a lot of speaking all that events. He's got three or four different seller accounts, different VPN for each one so he goes even to a further level.
Rochelle: All of my biggest clients are using VPNs. It is the smoothest, simplest way … as you said it's not just a matter of selling your business and having the VPN set up, it's actually an operational benefit. Because what it also means as you get bigger it's not just one person who needs to get into that account. You may have a team of people who have to go in and do different things at different times. They could be all over the world. But everybody coming in through the same VPN there's no confusion to Amazon bot. And frankly, it's a lot more secure.
Joe: I agree. And it's you $10, $15 a month.
Rochelle: Right.
Joe: You should be doing-
Rochelle: Absolutely.
Joe: Okay. Let's talk countries, you haven't talked about countries yet.
Rochelle: Right.
Joe: You haven't said Amazon.com eu whatever it might be.
Rochelle: Right.
Joe: Are you finding the same transfer process to be successful for Amazon.com, UK, Germany, France, Italy, etcetera or are you doing something a little different depending upon the country?
Rochelle: So generally we are using the same transfer process. Now one thing that I have to pull out when you are dealing with other countries you may have a V-A-T or VAT or Ad Valorem tax issue and generally that is not transferable. So you are going to need … the new company is going to need to set up their own tax ID in those countries. And there may be a change that has to be made and it may lag a little bit. Typically we use the same process. Most of our clients are driving their business through Amazon.com in the United States. It's a much smaller amount of traffic and a much smaller amount of sales going through the other countries. Although it's starting to pick up, it's starting to get a lot bigger. But we haven't focused as much on those international accounts but we haven't any trouble transferring them either. We just use the same process. There's been no disruption except for making sure that we have the Ad Valorem tax information necessary for those businesses.
Joe: Got you.
Rochelle: And it's been pretty seamless.
Joe: Got you. Okay, we've experienced the same thing. In regards to the value added taxes for people listening we did a podcast with Alex Lyon-
Rochelle: Excellent.
Joe: From AVASK Tax Advisors three weeks ago depending from when this is launched is it.
Rochelle: Right.
Joe: Let's put it this way, it launched 1
st of June or so. Great detail on how to set it up, what the pitfalls are in trying to do it on your own and the cost associated with it. And we also addressed the transfer of a seller account when to set that up and what comes first.
Rochelle: Right.
Joe: And she sort of detangled everything and it's not all that complicated.
Rochelle: Perfect.
Joe: Have you had a situation where the seller wanted to keep their seller account but transfer the brand out to a new owner and if yes tell us about it, please?
Rochelle: We have. Actually, we've had it both ways where the seller wanted to keep their account because maybe their seller account had multiple brands, multiple A Sense and they were only selling one set of their product lines, maybe one brand. And if that happens it has to be up front at the beginning of the deal. Everyone needs to understand at the beginning of the deal whether or not the account is going to transfer. And the buyer needs to appreciate that they may not be getting the seller account and frankly sometimes it's not the worst thing. For instance if the buyer is already an active Amazon Seller, the buyer may be very happy to have its current Amazon account just take over the A sense and that is a very smooth transition and it's literally a relisting of the A sense moved over and then the seller account just delist those; takes them off their registry.
Joe: The only challenge with it, you know it just piped it's … is the inventory. The inventory in the FBA account, Amazon will not transfer it from one FBA account to another. So you've got to time it so that new inventory is coming into that new seller account. You might leave the older account open, it still sells through that inventory but the new owner gets the revenue or the profit.
Rochelle: And the seller, if they sell through the existing inventory, may do it for the benefit of the buyer.
Joe: Yeah.
Rochelle: So that the money still transfers and all of that inventory and we just do an accounting.
Joe: Exactly.
Rochelle: You're exactly right Joe that is what happens. Let me give you another scenario and I actually have this scenario right now. I have a seller I represent who has multiple seller accounts and he … they have multiple brands in their seller account and they're about to sell that business. That particular seller account is poorly rated. It has had lots of negatives for a whole variety of reasons part of it's because it's very old and part of it is because of mistakes that were made early on. But the nature of that particular business, the products they sell makes a lot of money but the seller account itself is not great. And the buyer is actually going through the process right now and determining if they would be better off just starting a brand new seller account and not taking that history because again, you're picking up the history of something that isn't really great.
Joe: Yeah I guess it's better to have no history if the old history is very poor. But the challenge is let's back up and start with for those listening buyers or sellers if you have multiple brands in one seller account think about that transfer process. Someday you may wake up and say you know what I'm tired. I want to just unload something and put some money in the bank, set something aside so I can see something for the worth that I've done. The best way to do that is to have a clean transaction; you know separate LLC, clean documents, clean financials, and a separate seller account.
Rochelle: Separate VPN.
Joe: Separate VPN, exactly. You can have multiple seller accounts, I've talked to people that have six seven different seller accounts. You just have to get permission from Amazon and they will grant it again like Rochelle said at the beginning you just have to talk to the right person at Amazon.
Rochelle: Or … and you have to do it right, you have to keep those businesses as separate businesses with separate seller accounts. They're not going to let one business have multiple seller accounts.
Joe: Okay that's good information and it's hard for people when they bootstrap things and they test and certain things take off and they think this is great. Selling a business is more of a challenge and you got to have those things as separate as possible. I can tell you right now if you're going to spend a thousand dollars setting up a separate LLC and an extra thousand a year doing the accounting for it; you know $600 a year for separate Quick Books account you will get that money back tenfold in the sale [inaudible 00:28:26.9] your account so it's absolutely worth it to do it. So in terms of transferring the brand out of an account here's the drawbacks is that your buyer has to have another Amazon account with good or better ratings than the one that you have. Otherwise, your buyer pull is going to shrink and when your buyer pull shrinks the potential value for business shrinks as well.
Rochelle: That's right.
Joe: I've talked to many experts and I've named a few whom here that I have talked to about the transfer of a brand into a brand new Seller Account and they all think that's crazy. If it's got … if a good brand is in a good Seller Account you're transferring that to a brand new Seller Account they don't know anything about it-
Rochelle: It makes no sense.
Joe: And it's just risky.
Rochelle: Exactly.
Joe: I have a transaction that's going on now where the buyer had just purchased an Amazon Seller Account, it happens to be in a different country than the US and has got a great seller rating and they're going to buy another brand and move it into that same seller account into that same country versus taking over their Seller Account. Because the seller feels that there's a risk there that he doesn't want to take on.
Rochelle: Right.
Joe: So there's a lot of different ways to do these transactions and I hope that people can hear Rochelle through your communications that you're an attorney that actually thinks a little bit outside the box and understands that there's always two parties that are coming to the table and both have to be happy and satisfied in order to close a transaction. And you agree?
Rochelle: I absolutely agree and you know Joe one of the things that I'd like to talk to people about is, remember it is the Seller Account you're selling and very often that's what's driving the value. But also keep in mind there may be other things you're selling such as techniques or technology that you've invented to support your Seller Account that helps to drive the business to that account. Or possibly even your own know how and they may need you as part of the transition team. There may be issues with a non-compete especially if you're running multiple brands and you're selling one channel or one brand. So as you're getting ready to sell your business you really have to think about what it is you're selling. It's the Seller Account, it's the brand, what else is being sold and can you really sell the things that the buyer wants?
Joe: Yeah all of that should be done up front. What … the worst thing to do folks is to wake up and go okay I'm tired I want to sell my business so I'm going to call a broker.
Rochelle: Right.
Joe: That's the worst thing that … the best thing to do is to do what Rochelle is talking about and plan it in advance. Think … okay, maybe someday I'm going to sell my business let me just sort of get my ducks in a row.
Rochelle: Right.
Joe: Maybe I never will and maybe I'll pass it on to my kids but in the event, I get tired and want to move on I want to be prepared. And you want to think about all those things in advance and have those sort of all those ducks in a row.
Rochelle: Right.
Joe: In any contract negotiation let's touch on this briefly, both buyers and sellers you see both sides of the transactions all the time. What other stomach ache clauses that you see in an asset purchase agreement and how do you rectify them? Give me a couple of examples.
Rochelle: So I can tell you the top two are always the non-compete and the indemnification provisions. Those are always numbers one and two sometimes you know in whichever order you want to put them in. But those are the two things that are almost always the most concerning. So the non-compete; the non-compete sounds easy. I agree I'm going to sell my business that sells paint brushes and I promise not to compete in paint brushes. Well, the buyer may be looking at it a little differently. The buyer may say, I don’t want you to compete in anything that has anything to do with paint or anything that has anything to do with art or possibly anything that has anything to do with home or other kinds of activities. Very often they're going to look at Amazon categories and they're going to say I don't want you to compete in the category in which the product you sold is in. I've even had a buyer say I don't want you to be a … will compete in any category on Amazon or in any category in which I, the buyer may be in now or in the future.
Joe: Definitely nuts because I would tell them they’re nuts.
Rochelle: Well, of course, we say as politely as we can. We don't like to queer deals but those are always fight issues. And my suggestion although I know people don't like to deal with difficult issues up front when you're in the dating period but my suggestion is that you understand the non-compete from the start of the transaction and the LOI point.
Joe: Absolutely. We put all of that in our client interviews in depth, we ask about the non-compete, we talk to our sellers in detail about it because that is an important part of it from the seller's side. Look if this … the person selling the business is selling class fishing poles and they want to sell that business but still sell fishing poles it's too close and I'll tell them right up front as will any broker at Quiet Light Brokerage it's not going to work. Buyers are going to have a problem with that. I've never had a situation though I got to tell you, Rochelle, where a buyer has made an offer and said that we don't want you to sell anything on Amazon. That's simply too [inaudible 00:34:05.0]. I've never had anybody narrow it down to the category either because if you think about Home and Garden it's just too broad. It's usually been specific to the product and sometimes you know a little bit around that product. Let's say that if it's pick one that is not an actual-
Rochelle: We can talk about your fishing poles.
Joe: Sure.
Rochelle: Some people will say nothing in marine so does that mean I can't sell a boat? A boat is really different than a fishing pole. Does that mean we can't sell a [inaudible 00:34:38.9]?
Joe: Fishing tackle or things of that nature. I would say that it's … you can you can dance beyond that specific product a little bit but you can't go okay fishing pole and maybe lures but you can't go to boats, right?
Rochelle: Right. And the reason I bring it up is I have had and I will tell you where it is the … a lot of the buyers today are private equity firms.
Joe: True.
Rochelle: And they're doing roll ups, and those private equity firms feel like they're buying the expertise of the person, not just the product and they are all over the idea that the expertise of the person could be used to teach or develop somebody else to sell against them. And as these private equity firms are rolling up multiple brands, multiple areas and their diversifying they have gotten very aggressive on this non-compete language. So we actually have seen … this may affect, I saw a language that was so broad that I said we absolutely can't have our client sign it because she couldn't even work at the makeup counter in Macy's. Because Macy's has an online site and even though she'd be working at the store it would be technically a violation.
Joe: Right.
Rochelle: And the private equity guy said to me well we didn't mean that. I said well that's your language says though. And he said I see where you're coming from. We were able to bring it back and this is really where the skills of your lawyer and your broker come in. Because the combination of the two helps bring people back to reality but it's important that conversation happens up front.
Joe: I couldn't agree more. I find the vast majority of deals go off the rails at some point and the difference between a good lawyer and a good broker and a great lawyer and a great broker is pulling that back on the rails. I think the ability to have open communications and occasionally you know maybe I'm wrong I don't mean to throw you in a category here but-
Rochelle: Yeah.
Joe: You know I think attorneys when they respond to an asset purchase agreement and do edits and send it directly via email and make comments. It's vastly different than if they actually get-
Rochelle: Get on a phone.
Joe: When they get on a phone and speak to the other attorney, it's-
Rochelle: Absolutely.
Joe: You guys are brutal in emails and comments but then when you get on the phone you can generally work things out.
Rochelle: So one of the challenges Joe is that really it's more than there was but today there are very few lawyers who have experience in this kind of business.
Joe: Yup.
Rochelle: And the typical document we're seeing has all sorts of stuff in it that makes no sense for an Amazon business. It's got loads of employee representations on employee benefit plans, it has loads of pages on environmental reps and warranties because they've taken the standard ABA form or the standard form they always use and they send it and say this is our asset purchase agreement.
Joe: Right.
Rochelle: And people like … and I'll use Shawn Hussain as a great example I do a lot of deals with them, people like us look at that and we just simply white out all those pages. So we start off with 75 pages when we're done it's about 35 and 40 of them were just garbage.
Joe: Let's jump to the indemnification clause.
Rochelle: Yes.
Joe: Stomach ache clause number two, tell us about that one.
Rochelle: So indemnification, for people who don't understand what it is, it's the clause that says if something goes wrong after the sale here's when and how I might be able not I the buyer may be entitled to get some money back. Or get some protection get some defense. So understood anything that happened in your business prior to the sale of the business is certainly the seller's responsibility. Anything that happens in the business after the sale of the business is the buyer's responsibility. But then there's the foggy world; what about product that was produced by the seller but not sold until the buyer owns that inventory? What about claims made on the websites, claims made in the marketing materials, claims of natural or organic that the buyer is relying on that the seller created, or what about simple … the business didn't do very well? You told me this business is a million dollar a month business but when the buyer takes it over the think tanks, the lightning deals go away. There's all sorts of speculation, the supplier doesn't supply quite as well to the buyer as the seller, and then the buyer comes in and says how do I get money back for this it's not what I expected. It's really really important that going into the deal you understand what the caps and limits are, what's the maximum amount of money a buyer can get back and under what circumstances, and is there a deductible. So for instance fraud; okay everyone understands that if the seller committed fraud, the buyer is going to expect their money back and probably all of their money. At the same time let's just assume that what really happened is that the seller had representation, some warranties and in it it said that the financial statements that are attached are true and correct and it turns out one line has one number transposed, it doesn't change the business, it doesn't change the quality of the business, it is an immaterial mistake, should the buyer get money back? Should they get all their money back for that? Should they get any money back for that? And so that's what I would call a typical representation warranty. Let's assume there was as a result of that mistake there really was a little bit of a material implication. Well, it will … let's say turned into a $10,000 problem, so what should the buyer get for that $10,000 problem? The language and the representation warranties are very important. What we recommend is that going into the deal there be a very clear conversation about the difference between fraud which might mean you get your purchase price back or maybe even the right to unwind the transaction versus an unintentional misrepresentation or mistake or something hiccups that you didn't anticipate. And we recommend that you have a clear cap, what's the maximum amount that the buyer can get back in the event of those issues and it might be we … generally, we see somewhere between ten on the low side and 30% on the high side as the range; that's today's market, as the range for those kinds of indemnifications. We might see a basket, so we might see something that says but if it's all under $25,000 or under $50,000 depending on the size of the deal the buyer gets nothing back. It's just a small de minimus issue whereas if it's hundreds of thousands of dollars of issue there might be a cap on it. There are fundamental representations such as title to the assets and if it turns out the seller sells you something it didn't have title to it, of course, the buyer is going to expect to be completely reimbursed for that. There are questions about whether or not you'll pay for the attorneys. These are provisions that both your broker understands and your attorneys understand. I strongly recommend that you line up an attorney at the beginning of the deal at the LOI for the base of this and you also line up an accountant who and as a seller.
Joe: Well in advance.
Rochelle: Well in advance.
Joe: Yeah for sure. I hope you have one already for those listening that are sellers you know the four pillars that Mark and I talked about; the risk, the growth, the transferability, and the documentation are all critical. And you can't have that documentation in place without having a good a. bookkeeper and b. CPA to figure out what's going to be and left with after the sale. That's why I don't want you to wake up and go okay I'm ready to sell, list my business, please.
Rochelle: Right.
Joe: You want to think about those things in advance. I did a podcast with Dave Bryant from EcomCrew way back on importing from China and Dave talks about how he planned in advance selling his business and renegotiated the cost of goods sold on certain skews over a 12 month period. Saved himself about $40,000 and got that back in a multiple of three when he sold the business so all of these things are really important. As you talk about the indemnification, and as you talk about the non-compete for those listening you know I'm sure some of you nodded off right? Just like you did when I talked about the doing the valuation in cash versus accrual accounting. You can make so much more money in the sale of your business someday if you ever decide to sell or your heirs do when you take care of these things in advance when you plan when you have proper documentation. Now all of that will make these stomach ache clauses like the indemnification, not an issue. Proper documentation in advance of the sale you'll know that you did the right thing with your customers, you know that you don't have any cash and potential liabilities; you know that your financials are correct. That transposing of the number you know is it material, is it immaterial?
Rochelle: Right.
Joe: I've never had it happen pretty small if it's immaterial to material. I always go back to things can be worked out for the most part with math and logic. Emotion is the wild card, a good attorney a good a broker will help keep those emotions in check and on track to closing. And I think one of the reasons why I wanted you on the podcast Rochelle is because you seem to apply that math and logic into the conversations that we've had and you realize really really strongly that both buyers and sellers need to be happy.
Rochelle: Right.
Joe: Otherwise that transaction is not gonna close. There's no point. A one sided deal is never going to close folks. So if you have an attorney that is fighting tooth and nail for indemnification clause it's going to have the seller not cover anything, not cover any risk for the buyer, it's not going to close. It has to be comfortable for both parties. I always tell a story, I'm not going to tell the full story but it boils down to I will not take on a clients that is married to an attorney that has an attorney's her mother father sister brother that's going to do their contract negotiations because they fight like rabid dogs for things that you know there's one tenth of 1% of it happening but they fight like crazy to make sure that their client, their relative is fully protected. Because they're gonna have to have drinks to that relative at the next 4
th of July barbecue. Deals fall apart for those clauses that we've talked about more the indemnification in my experience than the non-compete because again a good broker will handle that upfront and take care of it upfront and it should be both buyer and seller free LOI. Now one last thing on the LOI face in terms of when to hire the attorney Rochelle, our experience is the letter of intent is non-binding and fully contingent on the asset purchase agreements on due diligence and the further detail of asset purchase agreement so we don't recommend that clients hire an attorney for the language in the letter of intent. Because it says right in there is non-binding and contingent on those things. I think as long as some of these points or all of these points are worked out in advance you know particularly the non-compete that it's in there that 9.5 times out of 10 it's not an issue. Occasionally we have a little further negotiation in the asset purchase agreement, would you agree though that you should be hired once the LOI is signed and for the asset purchase agreement negotiations?
Rochelle: Let me frame this a little differently.
Joe: Okay.
Rochelle: If you're getting ready to sell your business you should have a lawyer lined up who's taking a look at your business to make sure your ducks are in a row. Make sure if you have supply agreements that they are written signed enforceable supply agreements because if you're planning on selling those supply agreements then they have to have assignable supply agreements. So what I always suggest is just like you have your accountant in your back pocket you ought to have an attorney that you work with that's helped you think through your business. So I actually believe that you need to have a good business attorney lined up early on. Now having said that, 90% of my clients don't even though that is my advice and I wish we would be there. Joe is exactly right we are very often hired after LOI or right as the LOI is being prepared. And the only catch we have with LOI is if you have an LOI that doesn't address indemnification, it doesn't have a cap in it, when we go to do the asset purchase agreement the attorney on the other side will say the letter of intent didn't have a cap, the letter of intent said purchase price because it didn't say anything else. So when you're silent on those terms in the LOI you might have uphill battle. What you could do to protect yourself is to say a … indemnification with cap and basket to be agreed upon in the definitive document. So then you've at least left open the possibility that there's a negotiation to still be had on that topic whereas if you simply leave it silent the buyer is going to say that … I know I'd say when I'm a buyer I'm going to say no no no no no there were it said indemnification there were no caps, there were no baskets.
Joe: Yeah, you're going to say different things as the attorney for the buyer than you are for the seller.
Rochelle: Absolutely I'm very good at switching hat, as a matter of fact, I have represented clients who have been both buyers and sellers and they laugh about the fact that my tone changes and the way I look at the document changes. But we do what we have to do for our clients.
Joe: Yeah for those listening look like many of you had … you don't want to contact a broker to talk about the valuation of the business or what it might be worth and I've had people tell me that because they don't want to feel like they're committing. You've got to do the same thing with the attorney, I think you should have a call with a broker a year two years in advance just to understand the valuation process and how to gauge what your discretionary earnings are on a monthly basis, quarterly basis, so you get an idea for the value instead of just listening to podcast, instead of just listening to people in mastermind groups and their experiences because the full story is never told. Instead of just looking at listings and oh that's a 2.5 multiple, that's a three multiple, it's a four multiple, you don't get the full story. You can't do it that way. You should have a conversation and have it directly applied to your business and your business only because every business has its own unique qualities. The same applies I think as you're saying Rochelle to having a conversation with an attorney in advance because if there's a problem with the way that you set up your LLC or the trademark or a design or anything like that-
Rochelle: Right.
Joe: You should have those things addressed in advance. Well worth it. Do you do any … do you have an hourly charge for that first call? Do you have a free consultation? Do you just talk about business what it … how does it work if somebody wants to reach out to you and have that conversation?
Rochelle: Well we offer a 20 minute free consultation to all new clients. So we do it telephonically, most of our clients are not located. We're based in Tampa Florida which is a lovely place to live and do business. Most of our clients are all over the world. So we do it telephonically or through Skype or some other online method and we offer … we say 20 minutes and sometimes it goes a little longer depending on how in-depth we get. And in that call, we can then talk to you about what you need and how to price what you need. So sometimes what you need immediately is really just a few hours of our time and consultation and we'll bill it that way. Sometimes what you need is for us to dive in … as a firm we will do flat fees, we will do structured fees meaning that a certain price to cover the LOI and other price to cover due diligence a 3
rd price to cover the asset purchase agreement and actually do it in phases. We will do capped fees, it all depends on the nature of your transaction and on how well we can get our arms around what you're asking us to do. So for instance, if we're doing it capped fee or a flat fee we're going to be very specific about the services you're getting from us and things that are outside those services might be in addition. If we're doing an hourly rate, of course, we'll have some sort of retainer up front and we will be specific about what's included in those services but you'll be billed by the hour. We try very hard to be transparent and easy for our clients to understand what they're being billed for and how they're being billed.
Joe: Excellent. Rochelle listen we're going to wrap it up here, appreciate your time today. Can you tell those listening how to reach you, how do they find you either online or via phone call?
Rochelle: Absolutely so by phone, our number is 813 999 0199 and I am in extension 115 if you press 0 when you call that number ask for Layla and she will set you up with me or one of our attorneys for an additional counsel. And by e-mail I am
[email protected] And we have a policy of responding to people within 24 at the most 48 eight hours but we're usually pretty good about popping right back to you and getting something set up.
Joe: Terrific we'll make sure that that phone number the e-mail address and the website address are in the show notes as well.
Rochelle: Thank you.
Joe: Rochelle any last thoughts for those listening that may be either buyers or sellers that you want to share?
Rochelle: I just think in closing that when you think about buying or selling a business due diligence is the most important thing you can do. So even if you're an experienced Amazon seller whether you're a buyer or a seller you need to know who you're doing business with. Get some … if you're the buyer certainly understand the brand you're buying and understand what you're trying to accomplish by buying those brands, what services you need and frankly if you're the seller and you might be taking back seller paper which is a promissory note a seller promissory note you're going to want to know who the buyer is. Make sure you understand are they equipped to run a business like this and if they're not what kind of transition services do you need to provide them so they can hit the ground running. Know what kind of people there are, check them out. If you're dealing with people who are squirrelly get out of the deal in the … before you even sign the LOI. But if you're dealing with good people try and figure out how to make them successful because your success as a seller especially if you're taking back a seller's promissory note or consulting agreement your success is going to be very much related to their success.
Joe: I love your approach you know if you're … if you ever decide to leave the law business give us a call. You may be a very very very successful advisor here at Quiet Light Brokerage.
Rochelle: Thank you, Joe, I appreciate that and look forward to working with you again on some transactions.
Joe: All right. Well, thanks for being a guest I appreciate it. We'll talk to you soon.
Rochelle: Thanks, Joe.
Links:
www.walklawfirm.com
Walk Law Firm, PA
The Wells Fargo Building
100 S. Ashley Dr., Ste. 620
Tamp. FL 33602
Phone: 813-999-0199
Fax: 813-839-4896
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