Buying out the Boss: How to Acquire the Company You Work For


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This presentation was delivered by Jeff Fialky of Bacon & Wilson, P.C. and Michael Vann of the Vann Group. The presentation covers the various elements of a transaction and identifies all the things someone interested in buying the company they work for.

The presentation is broken down into four sections: 1) emotion; 2) knowledge; 3) strategy; and 4) tactics.

Published in: Business, Economy & Finance
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  • When considering a deal, there are four key elements that make up a deal. Emotion, because this is the biggest financial and personal decision you will make in your life, so emotion is absolutely part of it. Knowledge, because even the simplest deals are complicated and you have got to know what you know and what you don’t know. Strategy because we are talking about key financial and personal considerations so you need to know the big picture. And, tactics because how you execute on your knowledge and leverage your strategy is all about managing the devil in the details
  • There is no more emotional decision you will make in your life than buying a business; not getting married, divorced, having children, etc. Deciding to buy a business is like opening a pandoras box of the unknown. It will try your sanity, test your skills, and push you to the limit both financially and mentally and will lead to many sleepless nights for as long as you own the business
  • Its not this guy, in fact its not a stranger or some personally you kind of know
  • Its likely someone like your mom and dad or a mentor/friend. Its someone you’ve known for a longtime and who you have a relationship with. So, while all deals have an element of emotion to them, these deals are different because its personal – these are people with who the level of emotional connection you have is very different than just a some company you came across.
  • So, even though the business side of the deal is going to be arm’s length, there is a relationship in place and it is at risk – once you go down this path, things will never be the same in this relationship. You want look at each other the same way, and if the deal goes bad or doesn’t work out, you may find that you can have a relationship with this person anymore, at least not like what you’ve had in the past.
  • Before even thinking about starting the process, you need to make sure you are prepared to risk it all. Buying a business requires you to put your money in, put your house up for collateral and guarantee lots of debt? Are you willing to sacrifice your sleep, your weekends, your job your friends, etc.
  • If you can do that great, now be prepared for the ride because dealsare a roller coaster ride. You will experience all these emotions at any given time when doing a deal and its critical that you keep your cool and remember what you are trying to accomplish
  • Lastly, remember when it comes to managing emotion, the biggest emotion to manage is ego – your job when you are buying a company is to sooth the seller’s ego and keep yours in check. Ego is the number one deal killer because everything about a deal can be related back to ego.
  • In all likelihood you’ve never bought a business before, so you have no idea what the hell your doing. Getting educated on the process, the company, financing and human nature is an absolute must if you are going to be successful in buying a business
  • Knowledge for deals comes in four areas: Valuation – what is it worth; Expectations – what does a seller truly want; Realities – undisputable facts; alternatives – creative solutions
  • Sellers sometimes wear beer goggles when looking at their business and what they see is often times going to be very different than what the buyer sees
  • Buyers and sellers are naturally not going to be aligned
  • Always remember, the primary reason anyone is selling is because they want to cash out; they need to take an asset that is illiquid and make it liquid so they can remove risk.
  • This is a bit of a simplistic way to look at the world of valuation, but it gets the point across that a buyer and seller see the world differently on value. Sellers see what they think its worth, where buyers look at it from what can they afford and get.
  • Beyond money, There are other things that matter for a seller who is contemplating a sale to an insider. Consequently, in getting a deal done its critical to understand the sellers overall expectation
  • Like the US Constitution, there are certain unalienable rights that both a buyer and seller will need to deal with when doing a deal
  • Whenever figuring out the realities of a deal, it is always important to keep in mind the biggest realities of a deal are the biggest deal killers and you need to manage these as best you can. We’ve discussed ego and emotion, and greed seems like a given, but very often when you get into a transaction its not financial greed (more dollars) that surfaces, but the greed that comes from wanting to get just a little more
  • When it comes to deals where the desire to get the deal done is there but the resources may not be, its incumbent upon the parties to look at creative solutions and alternatives to the traditional method of accomplishing a transaction
  • Any questions?
  • Buying out the Boss: How to Acquire the Company You Work For

    1. 1. Buying Out the Boss<br />How to Acquire the Company You Work For<br />
    2. 2.
    3. 3.
    4. 4. The Elements of a Deal<br />
    5. 5. Emotion<br />Are You Prepared for the Ride?<br />Emotion<br />(Rollercoaster)<br />
    6. 6. Who is the Boss<br />That you want to buy?<br />Emotion<br />
    7. 7. Mom & Dad<br />My Mentor and Friend<br />Emotion<br />
    8. 8. The Looking Glass<br />Once you step in, everything changes<br />Emotion<br />
    9. 9. Are You Willing To Risk Everything?<br />Its gut check time<br />Emotion<br />
    10. 10. Experience it all in 60 Seconds or less<br />Emotion<br />
    11. 11. There is no place for it in a deal<br />Emotion<br />
    12. 12. Knowledge<br />Knowing is more than half the battle.<br />Knowledge<br />(Makes Deals Work)<br />
    13. 13. Knowledge<br />
    14. 14. When it comes to valuation<br />Perception is easily altered<br />Knowledge<br />
    15. 15. The Typical Seller Thinks<br />What the Buyer Thinks<br />Business is unique; its there baby<br />Inflated Sense of Value<br />Wants All Cash<br />Glosses Over Flaws<br />Wants to be Paid for the Opportunity<br />Not Interested in History<br />Doesn't’t Want to Pay Market Value<br />Wants Seller to Take A Lot of Paper<br />Over Analyzes Weaknesses<br />The typical buyer and seller start with unrealistic expectations<br />Knowledge<br />
    16. 16. The Seller is Selling<br />Because they want to cash out<br />Knowledge<br />
    17. 17. Perceptions of Value<br />The Seller Sees <br />The Buyer Sees<br />Knowledge<br />
    18. 18. Legacy<br />Knowledge<br />Continuity<br />Security<br />Love/Giving<br />Cash Flow<br />
    19. 19. You can’t always get what you want<br />But you can get what you need<br />Knowledge<br />
    20. 20. What reality means<br />The Nine Commandments of a Insider Deal<br />What is good for the buyer is not good for the seller<br />The buyer probably doesn’t have enough money to do the deal<br />Seller financing (more than they want) is necessary<br />Good advisors who know how to close deals are critical to success<br />The sale price doesn’t matter, its all about what the seller nets out<br />Numbers don’t lie, you can only do so much with them when it comes to financing<br />Banks are not investors and they are not risk takers<br />There is no such thing as a win/win deal<br />Be wicked smart – know everything you can<br />Knowledge<br />
    21. 21. Remember the deal killers<br />Knowledge<br />
    22. 22. The test of a first rate intelligence is the ability to hold two opposing ideas in mind and still retain the ability to function. One should be able to see a situation as hopeless yet be determined to make it otherwise<br />- F. Scott Fitzgerald<br />Knowledge<br />
    23. 23. Strategy<br />Without a plan there is no attack, no attack, no victory.<br />Strategy<br />Winning, Duh!<br />
    24. 24. Strategy<br />
    25. 25. Buyer Equity+What can be financed+Seller’s Commitmentcreative solutions=Purchase Price<br />Strategy<br />
    26. 26. Stock or Asset Deal<br />What is a Stock Deal<br />The Buyer purchases the Seller’s stock (e.g. ownership) interest owned by Seller; <br />Result: Buyer steps into shoes of Seller (as majority stockholder);<br />Transaction is between selling stockholder and purchasing individual (Corp. not necessarily a party)<br />Buyer acquires all assets and liabilities<br />What is an Asset Deal<br />Transaction between selling corp. and purchasing entity<br />Buyer purchases the (discreet) assets only;<br />Buyer chooses which, if any, liabilities to assume;<br />Buyer elects employees to retain; and<br />Buyer elects contracts to assume<br />Strategy<br />
    27. 27. Generally favors the seller:<br />Buyer inherits all assets (including those Buyer may not necessarily want or need);<br />Buyer inherits all liabilities of the Seller entity (incl. lawsuits, debt, historical wage issues, unknown claims);<br />Tax considerations: <br />Buyer- basis of entity’s assets may retain their depreciated values (thus, no stepped-up basis);<br />Seller- may get capital gains vs. ordinary income treatment<br />Sellers like stock sales<br />Because it works best for them<br />Strategy<br />
    28. 28. Common stock sale situations include:<br />Employee buyouts, family dealsand when contracts need to be inherited<br />Strategy<br />
    29. 29. Buyers get to choose<br />What they buy<br />Who/what they keep<br />Tax considerations:<br />Seller- must pay tax on difference between tax basis of the assets sold and the Purchase Price <br />The buyer gets a stepped up basis<br />Greater write-offs for Buyer;<br />Buyers like asset deals<br />Because they work best for them<br />Strategy<br />
    30. 30. Phased asset transaction<br />Price may be agreed upon in advance<br />May be funded with insurance<br />Assets purchased into a separate entity to avoid liability<br />Stepped stock transaction<br />Tied to time and benchmarks<br />Employee granted stock each year based on benchmarks<br />Employee receives bonus comp to purchase stock<br />Employee gets stock grants that vest over time<br />Funded via bonuses, loans from corp or life insurance<br />Continuous employment tied with termination & change of control provisions<br />Put/call options essential<br />Price terms agreed upon in advance<br />The phased transaction<br />When selling 100% isn’t possible <br />Strategy<br />
    31. 31. Where do you get the money?<br />Oh, let me count the ways<br />Strategy<br />
    32. 32. Some places include<br />Your own money, family/friends/fools, your bank, the seller, creative instruments and non-traditional sources<br />Strategy<br />
    33. 33. Traditional loan relationship; borrow it, collateralize it, amortize it, pay it<br />Once its paid, the lender relationship ends<br />Advantages include:<br />Retain maximum control over business<br />Loan terms are objective and determinable;<br />Early prepayment;<br />The interest on debt financing may be tax deductible;<br />Disadvantages include:<br />Have to be bankable<br />Financial covenants/reporting<br />Risk of default<br />Debt financing<br />Other peoples money: part I<br />Strategy<br />
    34. 34. Third parties provide capital in exchange for equity<br />Can be institutional or family, friends and fools<br />Advantages include:<br />No traditional debt service; banks considers it subordinate<br />Investor is a partner; incentivized to be successful<br />Allows for spreading risk among multiple parties<br />Disadvantages include:<br />Others have a say in decision making; autonomy is affected<br />Investors have a say on the board and influence<br />They have stockholder rights<br />Terms may be onerous <br />Equity money<br />Other peoples money: Part II<br />Strategy<br />
    35. 35. Seller is the bank<br />Secures position on assets and with personal guarantee<br />Promissory note with interest at or below prime rates<br />Provides an opportunity to get a better price & cash flow<br />Benefits of seller financing<br />Assures the seller will live up to their reps/warranties<br />Demonstrates their confidence in the business/buyer<br />Increases the likelihood of seller being cooperative and helpful to the buyer<br />Purchaser gets a right of setoff for breaches<br />Seller financing<br />Because it’s a reality of a sale today<br />Strategy<br />
    36. 36. Other creative solutions<br />Earnouts<br />Leases<br />Employment/Consulting Agreements<br />Extension of benefits<br />Minority positions<br />Life insurance<br />Closing adjustments<br />Rent<br />Gift cards and other liabilities that will be redeemed <br />Discounts for assumption of receivables<br />Inventory adjustments and terms<br />What else exists?<br />Other financing arrangements/issues<br />Strategy<br />
    37. 37. Choosing an Entity<br />Types of Entities for Asset Deals<br />Sole proprietorship<br />General partnership<br />Corporation<br />S-Corp<br />C-Corp<br />Limited Liability Company<br />Considerations<br />Composition of equity structure<br />Preferred tax treatment<br />Nature of limitation of liability (e.g. sole prop. Versus LLC)<br />Legal limitations<br />Preferred stock required?<br />Non-resident aliens?<br />Self-employment tax exposure?<br />Strategy<br />
    38. 38. Tactics<br />The destination means nothing without knowing how to get there<br />Tactics<br />Execution Matters<br />
    39. 39. A business plan that:<br />Shows you know what your talking about<br />Doesn’t brag/boast<br />Explains the deal and the details concisely <br />Answers the questions before they are asked<br />Projections that<br />Are reasonable and reflective of the past<br />Are complete with income statement and balance sheet<br />Three years projected forward<br />Are annotated with notes<br />Don’t forget<br />All the documents for the business and you personally<br />Financing<br />The ABC’s of what you need<br />Tactics<br />
    40. 40. Letter of Intent<br />Broadly outlines the deal <br />Non-binding<br />Purchase & Sale Agreement<br />Is the details of the deal<br />Legally binding<br />Consulting Agreement<br />Defines terms of how a seller will be engaged as a non-employee<br />Employment Agreement<br />Defines the terms of how a seller will be employed<br />Non-Compete Agreement<br />Restrictions on sellers post deal activities<br />Promissory Note<br />Terms and conditions of seller financing<br />The documents<br />Is where the devil lives<br />Tactics<br />
    41. 41. Third party consents<br />Most contracts require prior consent to assignment:<br />equipment leases<br />real property leases<br />Sales contracts<br /> Failure to obtain consent invalidates agreement<br />Requesting consent can (unintended) open renegotiation<br />Non-Compete/Solicitation<br />Prevent seller from opening competing business and calling on customers (and key employees) of purchased company;<br />Must be reasonable in scope and duration<br />The Devil is always in the details<br />Deal considerations that make/break a deal<br />Tactics<br />
    42. 42. Representations & Warranties<br />Most negotiated part of a deal<br />Method of obtaining disclosure from Seller;<br />Assets free and clear of encumbrance<br />Due authority/good standing<br />Compliance with laws<br />Proper payment of employees<br />Basis for the indemnification obligations;<br />Frame the Seller’s closing conditions<br />Reps & Warranties<br />Ensuring the parties do what they say<br />Tactics<br />
    43. 43. Indemnification is the obligation of Seller to pay Buyer for claims, losses and damages incurred:<br />Who is the indemnifying party: <br />Seller entity and/or shareholders<br />Nature of indemnification:<br />Acts or omissions of Seller prior to sale;<br />Breach of reps./warranties;<br />Duration of indemnity<br />Do what you say<br />Indemnification is the deal enforcer<br />Tactics<br />
    44. 44. Reps and warranties are true and correct<br />Parties have due authority for transaction<br />Transaction in accordance with applicable laws<br />All third party consents received<br />Any governmental approvals obtained<br />Employment arrangements with employees have been finalized<br />No material adverse change in assets or the business<br />Getting to close<br />Closing conditions to be aware of <br />Tactics<br />