Introduction :
Thailand’s growing economy, strategic location in Asia, and investor-friendly policies such as the Board of Investment make it an attractive destination for foreign entrepreneurs. For foreign investors, acquiring an existing business can be a more efficient and less risky way to enter the market than starting their own business.
This guide provides a detailed overview of the legal, financial, and operational aspects for investors who wish to buy a business in thailand.
Points clés
- Buying a business in Thailand offers significant advantages, including ready-to-use infrastructure, an established market presence, and immediate access to the company’s operations, which can improve profitability.
- Thorough due diligence is highly recommended, including examining corporate documentation, financial health, contracts, operational factors, and legal compliance to identify potential risks and hidden liabilities.
- Investors must choose between two acquisition options: purchasing the entire business (inheriting all assets and liabilities) or buying specific assets (providing more flexibility but potentially disrupting existing relationships).
- The legal transfer of ownership involves a series of steps, including updating shareholder registers, executing share transfer instruments, changing directors, and registering asset transfers with relevant Thai authorities.
What are the First Things to Consider when Buying a Business in Thailand?
Purchasing a business in Thailand is a significant undertaking that is not free from risk. In order to make sure that the purchase is the right option for the investor, the following should be considered:
Due Diligence
Before Buying a business in Thailand, the first and most important step is conducting thorough due diligence. Due diligence allows you to fully understand the business you are acquiring, including the company’s financial health, legal obligations and liabilities, and operational risks.
Choosing whether to purchase the company or just the assets
In most cases, buying a company in Thailand is the more straightforward option. This allows you to acquire not only the business’s assets but also its existing contracts, employees, and operational structure. Additionally, sellers typically prefer this method because selling individual assets can create tax implications.
If you purchase only the business assets rather than the company itself, the selling company may be subject to corporate income tax on the sale, depending on the asset values recorded in its books. Furthermore, if the company ceases operations after selling its assets, it must go through a liquidation process, which involves additional costs and administrative requirements.
As a result, sellers often require a full company sale rather than an asset-only sale.
Understanding the company structure as a foreign owner
When purchasing a company in Thailand, it’s important to understand that you are not only acquiring its assets but also inheriting its liabilities. Therefore, it is recommended to examine how the business is structured before finalizing the transaction.
One key consideration is whether the company has foreign shareholders. Thailand has strict regulations on foreign ownership and business activities, so you must ensure that the business has been operating legally.
If the company does not hold a Foreign Business License (FBL) or a Board of Investment (BOI) promotion allowing full foreign ownership, it likely has Thai shareholders to comply with local regulations. In such cases, due diligence should confirm that these Thai shareholders are legitimate and have properly funded their shares and are not nominees. Nominee shareholders are illegal in Thailand as per the Foreign Business Act.
Since purchasing a company means inheriting its liabilities, you should acquire shares from all shareholders, including Thai shareholders, to ensure full control and legal compliance. If a foreign investor is leading the transaction, the agreement should clearly state that the foreign shareholder will act as an attorney-in-fact for all other shareholders and is responsible for distributing payments.
The legitimacy of the business being purchased
When buying a business in Thailand, potential buyers should not rely solely on the company’s financial books. Many businesses, especially in industries like hospitality, retail, and entertainment, do not maintain proper accounting books. As a result, their financial statements may not accurately reflect the company’s financial position. In some cases, it may be impossible to verify whether the business generates the revenue it claims.
Buyers should also be careful of sellers who may artificially inflate the business’s apparent success. For example, some may stage a restaurant or entertainment venue with hired patrons to create the illusion of high foot traffic and popularity. Without proper due diligence, you risk purchasing a business that fails to attract genuine customers once the sale is complete.
Another important note is that Thailand is increasingly digitizing its tax system, making it harder for businesses to operate with incomplete or inaccurate financial records. While some businesses may have previously unreported income or avoided taxes, this is becoming much harder to do.
Before finalizing a purchase, assess how legitimizing operations, including paying VAT, corporate income tax, and proper wages, will impact the business’s profitability. Calculating these costs will help you make an informed decision and avoid unexpected financial issues later on.
Reasons to Buy a Business in Thailand
Purchasing an existing business in Thailand offers some significant advantages over starting a new venture, particularly for foreign investors looking to enter a new market. By acquiring an existing entity, you can take advantage of the established infrastructure, relationships, and market knowledge.
Quicker Opportunity for Profitability
The ability to maintain continuous operations when acquiring a business in Thailand can significantly reduce the time it takes to achieve profitability by removing the challenges associated with starting from scratch.
Unlike a newly established business, which often requires extensive market research, brand-building, and customer acquisition, an existing business already has operational systems, a loyal customer base, established supplier relationships, and trained employees in place.
This allows for the business to keep going and minimises any disruptions and ensures that revenue continues to be generated from day one.
Ready-to-Use Infrastructure
Acquiring a business in Thailand provides immediate access to all the necessary assets required for immediate activity. From an established office space/production facilities, IT systems, and essential equipment required for operation, these infrastructure elements are already in place, removing the need for any initial investments.
Unlike a startup that requires time to set up workspaces and obtain machinery etc, an established business allows the new owner to complete the purchase and begin operations without major disruptions or delays.
Acquiring an existing business in Thailand also provides the advantage of established supply chains, customer service protocols, and vendor relationships. Unlike a new business that requires time to build reliable supplier networks, negotiate contracts, and establish service standards, an operational business already has these components in place.
Additionally, existing company processes have already been tested and refined, reducing the risks associated with trying an untested product.
Trained Workforce
One of the key advantages of acquiring an existing business in Thailand is inheriting a trained and experienced workforce that is already familiar with the company’s operations, processes, and culture.
Unlike a new company, which requires extensive recruitment, onboarding, and training, an established business comes with employees who understand the day-to-day workings of the company, customer service standards, and internal systems.
This allows for a smooth transition of ownership without major disruptions in productivity and maintains business continuity, customer relationships, and supplier connections, all of which are important for long-term stability.
Existing Market Presence
An established business often comes with an established market position and loyal customer base. Examples of this include:
- Brand Recognition: Acquiring a company with a trusted name and reputation means you inherit that reputation upon buying the company.
- Customer Loyalty: Retaining an existing customer base provides a steady flow of revenue.
- Market Knowledge: The business’s previous operating history within the market can provide you with insights into consumer preferences, competitive information, and potential opportunities for growth.
Pre-Approved Regulatory Compliance
A properly established business should already meet the regulatory requirements for it to be able to engage in its business activities. This means that the company should already have obtained the required business licenses and certifications required to operate.
Existing Capital Structures
If the business has already satisfied requirements such as the minimum registered capital to hire foreign employees (2 million THB per foreign worker), you may not need to inject additional funds to meet these criteria. Therefore, it comes a lot easier to obtain a work permit for the new foreign owner or employees.
Favorable Economic and Policy Environment
Thailand’s continued economic growth and business friendly policies make it an attractive destination for foreign investors who are looking to acquire a local business.
Thailand offers a range of government incentives through organizations like the Board of Investment (BOI), which can grant significant benefits such as 100% foreign ownership, tax incentives, and reduced requirements for hiring foreign nationals.
These incentives can help lower operational costs and simplify the process of starting a business in the country.
With its combination of favorable economic conditions, governmental support, and expanding sectors, acquiring a business in Thailand provides opportunities for both short-term growth and long-term success.
Risks to Consider When Looking to Buy a Business
While acquiring an established business in Thailand can offer many benefits, it may also face many issues. A detailed understanding of these potential issues is required for mitigating risks and making an informed decision.
Inherited Liabilities
One of the most significant risks when purchasing a business outright is inheriting the company’s existing liabilities.
What liabilities (debts, legal disputes) might transfer to the buyer?
Unpaid Taxes: Outstanding tax liabilities can result in fines or legal action against the new owner.
Undisclosed Lawsuits: The company may be involved in pending or potential legal disputes that could lead to financial losses or reputational damage.
Contractual Obligations: Pre-existing supplier or customer agreements may impose unfavorable terms or financial commitments that the buyer cannot easily renegotiate.
Liability for Past Misconduct: Even if the buyer had no involvement or prior knowledge, they may be held accountable for the seller’s previous actions, such as: breaches of contract, regulatory non-compliance and fraud or misrepresentation.
Challenges with Lease Agreements
In Thailand, commercial lease agreements can be problematic due to legal limitations. It’s common for businesses to structure leases as three-year agreements to avoid registration requirements. Leases over three years must be registered with the Land Department to remain legally enforceable beyond the third year. Some businesses also structure leases in such a way in order to avoid certain fees, even though the registration fee is not especially high at just 1.1% of the total lease value.
However, if the premises are important to the businesses operations, the business should negotiate lease terms upfront during the acquisition process. Whenever possible, consider trying to obtain extended lease rights directly from the property owner. A registered lease provides stronger legal protection, allowing for a longer lease term and ensuring that your lease rights remain intact even if the landlord sells the property or faces legal issues.
As part of the purchase agreement, it is advisable to include a clause that allows you to negotiate a direct lease with the property owner.
Unprotected leases can lead to issues later, as there is no guarantee that the landlord will agree to renew the lease under the same terms, or at all. They may also choose to increase the rent or impose unfavorable conditions during renewal negotiations.
Without a long-term lease in place, the businesses ability to operate properly could be disrupted. Additionally, unexpected relocation expenses could be significant and have a big effect on the company’s profitability.
What is Key Money in Thailand?
Key money is a common but not clearly defined concept in Thailand’s rental and lease agreements for commercial property deals. Key money can relate to different payments, including:
- A fee paid to an existing tenant for assigning a lease at a below-market rental price.
- A direct payment to a landlord,
- A security deposit (usually non-refundable).
In many cases, key money is simply part of the overall lease price, often used as an upfront lump sum payment in exchange for a lower monthly rent. Since key money is usually not declared as part of the renting price, the actual declared rental value is often lower than the market price. Landlords may also require key money again when renewing a lease.
It’s important to note that key money is not a legal requirement under Thai law. It is a common practice used by tenants or landlords to assign lease rights or secure access to a property, but there is no official regulation.
If you are asked to pay key money, it’s important to understand exactly what is included in the deal and whether it is actually necessary. Key money should always be negotiated carefully, ensuring that you are not paying for something you could otherwise obtain directly from the landlord or through a more favorable lease agreement.
High Capital Investment Requirements
Acquiring an established business in Thailand often requires significant financial investment, as buyers are not only purchasing physical assets but also the goodwill, brand reputation, and operational stability that come with an existing company.
The initial purchase price is often higher than starting a business from the beginning due to the value of established customer relationships, trained employees, supplier contracts, and established revenue streams.
However, acquisitions may also require additional capital for renovations, technology upgrades, or rebranding to better align the business with the buyer’s needs. Examples could include, modernizing equipment, updating IT systems, or targeting a new market segment.
Purchasing Only the Assets of a Company
When considering business acquisition in Thailand, investors have the option to purchase a company’s assets instead of the entire entity. This approach has its own set of benefits and drawbacks that may influence your decision.
Advantages of Purchasing the Assets of a Company
Choosing to purchase only the assets of a company can provide buyers with greater control and flexibility while avoiding certain risks associated with a full business takeover.
Avoidance of Liabilities
One of the main advantages of purchasing assets rather than the entire business is the ability to avoid inheriting the seller’s liabilities.
Since the buyer is not taking over the legal entity, liabilities such as unpaid taxes, existing lawsuits, or outstanding loans tied to the company remain the responsibility of the seller.
The buyer is also less likely to face legal disputes or claims arising from the seller’s prior actions or obligations. Any previous breaches of Thai laws or regulations by the seller do not transfer with the assets.
Flexibility to Choose Assets
With an asset purchase, buyers have the freedom to customize their acquisition. Buyers can acquire only the assets that match with their goals, such as equipment, intellectual property, or inventory, and leave behind unwanted assets or liabilities.
Disadvantages of Purchasing the Assets of a Company
While asset purchases offer significant benefits, there are some drawbacks that may affect the overall value and operational readiness of the acquisition.
Loss of Established Business Benefits
By acquiring only the assets of a business rather than the entire company, a buyer misses out on several key advantages that come with a full acquisition. One major disadvantage is the loss of brand reputation, as purchasing assets does not automatically transfer the goodwill, customer loyalty, or market recognition that the seller’s business has built over time.
Also, the company operations can be affected, as supplier and customer relationships do not transfer with the assets, requiring the buyer to reestablish contracts and attract customers.
Another challenge is the workforce, as employees are not automatically included in an asset purchase, meaning the buyer may need to recruit and train new staff or negotiate separate agreements to retain key personnel.
Higher Tax and Transaction Costs
Purchasing individual assets rather than acquiring the entire business can often result in higher overall costs due to various financial and administrative factors. One significant concern is tax liabilities.
In Thailand, different asset classes, such as property, equipment, and inventory, may be subject to varying tax rates, potentially increasing the buyer’s total tax burden. Additionally, the process of transferring multiple assets comes with higher legal and administrative expenses, including registration fees, contract drafting, and due diligence costs.
Need to Renegotiate Agreements
Unlike a full business acquisition, purchasing individual assets often means that existing contracts and agreements do not transfer. This means that Supplier contracts must be renegotiated, which may lead to less favorable terms or disruptions in the supply chain.
Customer relationships are also not automatically included in the transaction, meaning the buyer will have to establish new agreements with clients which could result in a potential loss of business during the transition period.
Finally, any licenses and permits held by the seller may be non-transferable, meaning the buyer will have to apply for their own licences should they be required.
Key Steps in Buying a Business in Thailand
When looking to buy a business in Thailand, the following steps should be considered.
1. Conducting Thorough Due Diligence
Due diligence is a key part of a successful acquisition of an existing company. Undertaking due diligence allows prospective buyers to evaluate the target business’s financial health, legal compliance, and performance while identifying any hidden liabilities or risks.
Due diligence protects your investment by providing a complete understanding of the business’s value and potential risks.
Key Areas of Focus
- Corporate Documentation:
- Company Registration: Verify that the business is properly registered with the Department of Business Development (DBD) and compliant with Thai laws, including the la loi sur les entreprises étrangères.
- Shareholder and Director Details: Review the company’s Articles of Association, shareholder agreements, and board resolutions to ensure everything matches with the proposed sale.
- Financial Health:
- Financial Statements: Examine audited financial reports, tax returns, and bank statements to assess revenue trends, profitability, and solvency.
- Outstanding Liabilities: Check for any unpaid debts, tax arrears, or pending legal disputes that could impact future operations.
- Contracts and Agreements:
- Lease Agreements: Ensure that property leases are registered with the Land Department if exceeding three years, and review renewal clauses and termination rights.
- Supplier and Customer Contracts: Review and agreements to understand the business’s ongoing obligations and relationships.
- Operational Factors:
- Employee Records: Review employment contracts, benefits, and severance policies to ensure compliance with Thai labor laws.
- Assets: Verify ownership and valuation of assets, including real estate, machinery, intellectual property, and inventory.
- Legal and Regulatory Compliance:
- Identify any ongoing or past legal disputes, unpaid taxes, or compliance issues with permits and licenses.
- Confirm that the company holds all necessary approvals to operate in its industry.
2. Drafting and Negotiating the Purchase Agreement
Drafting a proper purchase agreement is required to protect your interests and ensure a smooth transaction. Depending on the acquisition structure, you’ll need either a Share Purchase Agreement (SPA) or an Asset Purchase Agreement (APA). A properly drafted purchase agreement reduces the risk of disputes and provides a clear framework for the transaction, protecting both parties’ interests.
Key Components of the Agreement
- Description of the Transaction: Clearly define whether the sale includes the company’s shares, assets, or both. Specify any exclusions.
- Financial Terms:
- Purchase price and payment schedule.
- Earnout provisions or performance-based payments, if applicable.
- Representations and Warranties: Assurances from the seller about the business’s condition, compliance, and not having any hidden liabilities.
- Indemnity Provisions: Protect the buyer against claims or liabilities arising from pre-sale activities.
- Closing Conditions: Outline requirements to finalize the transaction, such as regulatory approvals, tax clearance, or debt settlements.
- Post-Sale Obligations: Include non-compete clauses, transitional support from the seller, or employee retention agreements.
Protections for the Buyer in a Share Purchase Agreement
To protect yourself as the buyer, it is recommended to include seller guarantees in the agreement. These guarantees will protect the buyer from any hidden liabilities or undisclosed issues arise within a certain period after the sale, the seller remains liable for them.
In some cases, the buyers of the company may require the previous owner’s involvement for a transitional period. This can help ensure a smooth transfer of knowledge and operational continuity. The former owner may stay on as a consultant or manager for a set period, allowing you to learn the key requirements for the business before fully taking over.
What is an In-Out Clause in Thailand?
Another effective form of buyer protection is to include an in-out clause into the purchase agreement. An In-out clause links part of the purchase price to the company’s actual performance over a defined period after the sale. Instead of paying the full price upfront, an agreed amount is withheld and only paid if the business meets the agreed revenue and income targets.
This clause offers strong protection against sellers fraudulently increasing their finances or misleading buyers about the company’s performance. If the revenue does meet the buyer’s expectations, the withheld amount can be adjusted or forfeited, reducing the buyer’s risk.
3. Completing the Transfer of Ownership
Once the purchase agreement is finalized, the legal transfer of ownership must be completed. This process includes:
Share Transfer
- Execute a share transfer instrument with signatures from the transferor and transferee.
- Update the shareholder register and file the changes with the Ministry of Commerce.
- Pay applicable stamp duty based on the share transfer value.
Director Changes
- Call a board meeting to appoint new directors and define their authority.
- Update the company affidavit with the Department of Business Development (DBD) to show the new management structure.
Asset Transfers
- If purchasing assets, register the transfer of ownership for items such as real estate, vehicles, and intellectual property, with the relevant authorities.
- Ensure all asset-related taxes and fees are paid during the transfer process.
4. Post-Acquisition Restructuring
After acquiring the business, restructuring may be necessary to make sure the company meets your needs.
Key Areas for Restructuring
Corporate Governance
When acquiring a business, updating corporate governance documents is essential to reflect the new ownership structure and ensure compliance with Thai company laws. This includes reviewing and amending key legal documents such as the Articles of Association and shareholder agreements to match your business goals and protect stakeholder interests.
Rebranding
When acquiring a business, rebranding or repositioning can be an option used to bring the company in line with your long-term vision, especially if you plan to target a new market segment.
Potential options include refreshing the brand identity, adapting the business model, or adjusting the company’s messaging.
If rebranding is required, it should be approached carefully and not have a negative effect on existing customers.
Employee Retention and Recruitment
When acquiring a business, maintaining a strong workforce can help achieve a smooth transition. Keeping key employees allows for continuity in operations, retains key company knowledge, and helps maintain relationships with customers and suppliers.
While retaining key staff is important, recruitment allows you to expand your team, bring in fresh expertise, and align the team with your long-term business goals.
Accounting
When acquiring a business in Thailand, it is recommended to change the company’s accountant. While it may seem convenient to keep the existing accountant, choosing your own allows you to gain clear and unbiased insight into the company’s finances and ensure that bookkeeping and tax compliance are handled correctly.
This is increasingly more important due to Thailand’s digitalization of its tax system, businesses that previously operated with poor accounting practices may struggle to continue doing so. Having a new accountant from the start helps you avoid unexpected tax issues and ensures your business operates legally and efficiently.
Please note that this article is for information prposes only and ne constitue pas un avis juridique.