There are various structural considerations that we have seen come to fruition in past transactions. Each transaction is unique and requires the flexibility and resources to adapt accordingly. However, several structural considerations that are not uncommon in the middle market industry are provided below:
Asset vs Stock Sale: There are a number of tax- and liability-related implications behind how the acquisition of our client's business will be structured, with respect to it being either an asset purchase or a stock purchase." In short, most buyers will likely prefer to pursue an asset purchase when acquiring our client's businesses, versus a stock purchase. The structuring of a transaction is a point of negotiation and, if executed properly, the economic trade-offs/implications between these two structural options will be reflected in the adjusted consideration for the company. If you'd like us to get you greater detail on this structural consideration, and its tax and liability impacts, please
contact us.
Retrospective C-Corp Taxation: When a C-corp is converted into an S-corp, there is a 10-year window from the time of conversion where that entity will continue to be taxed as a C-corp for any built in gains." All other non-built in gains items will be taxed as an S-corp following the conversion. If one of our clients recently converted into an S-corp, they should consider the trade-offs of postponing the sale of their company if they were interested in avoiding this incremental, double tax.
Earn-Outs: Some buyers will offer to acquire our clients businesses with 100% of the consideration paid in cash, upfront at the time of closing. On the other end of the spectrum, some buyers will prefer to offer a portion of the total consideration for our clients businesses upfront while deferring the balance of the consideration, often in the form of anearn-out (and sometimes a seller note or another deferred method). As with an asset versus stock sale, this earn-out vehicle also remains a point of negotiation and there are various tactics we can take to help mitigate this approach by buyers. Earn-outs are designed to lower the level of execution risk for buyers (e.g. due to a number of possible reasons, including customer concentration risk, new market risk, overall performance risk, the risk of key personnel turnover, etc.) by paying the seller a portion of the consideration to the owners of our clients over time, as the company achieves certain milestones in the future. One of the key considerations when analyzing earn-outs are the mechanics of how the earn-outs are structured, with respect to term and triggers. From a term perspective, earn-outs are not typically longer than three years. From a trigger perspective, there are certain mechanics you want to avoid in order to increase the probability of reward/collection. Based on these mechanics, how earn-outs are documented and tracked is highly important. It's also worth noting that the use of earn-outs are more common with financial buyers than strategic buyers, so the probability of our offers including earn-outs will differ, depending upon the buyer type and our go-to-market strategy. The percent of the consideration that is ultimately allocated to an earn-out is on a case-by-case basis and is largely dependent upon the buyer's perceived risk in the transaction.
Escrow Account: It's not uncommon for a buyer to request an escrow account, perhaps for 5%-10% or so, of the consideration in order to ensure there are no surprises post-closing. These funds typically are not locked up for long, but it's something to be aware of.
Cash vs Stock Proceeds: On occasion, strategic buyers will include equity and/or options as a component of the consideration for our client's businesses. The strategies behind this approach can be several fold, including your alignment of future interests with a seller, a vehicle to help entice the seller's management to remain with the buyer, etc. If options are included in an offer, we'll run a Black-Scholes model to determine their projected value. If equity is included, we'll want to take a hard look at some of the terms, such as the lock-up period, drag along rights, tag along rights, etc.
Valuation: When it comes to buyers valuing our client's businesses, we will be in a position to run various discounted cash flow analyses to validate/invalidate buyers offers. Before going to market, we will reverse engineer how buyers will likely value our clients businesses, based on the projections we decide to eventually provide. This approach allows us to sanity check our projections, before we provide them to buyers, and to make sure they are aligned with your exit goals (i.e. it helps us indirectly drive offers towards our goals). As buyer dialogue unfolds and offers are received, we will aim towards quantifying any cost synergies, cross-selling synergies, etc. that might increase a buyer's ability to pay a premium for our client's businesses. Given our deal experience as well as our previous experience of serving as buyers of private companies in the past, we are in an advantageous position to keep the buyer's offers honest, as we'll have a good sense of how they will have arrived at those values. As we get into the negotiations with buyers, maintaining a sense of competitive tension in the process (via utilizing the best practices from our Wall Street background) will help drive up the values resulting in two phases of offers (initial Indications of Interest and then Letters of Intent).
Equity Roll-Over: If the buyer of our client's businesses is a financial buyer (i.e. a private equity fund), it is not uncommon for them to ask key members of management to roll over a portion of their proceeds into equity of the Newco going forward. The strategy behind this equity roll-over approach is to allow you to monetize a significant amount of your equity via the sale of your company, but to not take all of your chips off of the table. By asking you to retain a portion of your proceeds in the Newco, the private equity buyer helps align your interests with theirs. It wouldn't be uncommon for a financial buyer to ask you to roll over 10% or so of your equity into Newco. I's also worth noting that you could be awarded additional options on top of that roll-over and/or in absence of any roll-over (as not all private equity funds will ask for this). For those owners willing to stay on board post-transaction, it can afford them a nice opportunity to monetize their equity in their company now and then double dip by securing additional upside with Newco via an option award. The option/ownership pool for management is typically 10%-20% for private equity-backed companies.
Bahamas or Drive Growth Forward: Some buyers will strongly prefer you to stay post-transaction and help take your company to the next level with their backing. In this case, we will make sure we structure certain language in your employment agreements (such as severance compensation being commensurate with whatever non-competition period they request, etc.). Other buyers will be comfortable with freeing you up to pursue other entrepreneurial interests (albeit you will be required to sign a non-compete/non-solicitation agreement, etc.). And some buyers will prefer a hybrid approach where you may be asked to serve as a consultant, versus an employee, for a certain time. Regardless, it is not uncommon for buyers asking you to help in some form during a transition period, which could range from 12 months to 18 months. These high-level thoughts are not intended to be, nor should it be utilized by you, or your company or anyone, as legal, tax, or accounting advice or services from The Capital Corporation.