GETTING READY FROM THE BUYER'S PERSPECTIVE
In the previous chapters, we talked about sellers who are in the process of considering a sale. The focus in this third chapter starts instead with the BUYER, and then moves on to look at the big picture aspects of the PRICE.
A critical question worth repeating as we move on to rules for buyers is: Do you really have a willing seller? Or is the seller so emotionally tied to the agency that no buyer will ever actually be good enough to pass muster? Is the seller reluctantly willing to sell -- but only if the price/terms are unrealistically high?
Potential sellers should think these things through very carefully before spending a lot of everyone’s time and money on a seemingly desirable deal that is unlikely to actually take place.
Once it becomes apparent to you as a potential buyer, that the seller is not really ready to sell, then it's time to politely walk away. Don’t burn your bridges though; the seller may very well be more ready at some point in the future and you can resurrect the deal at that point. Just don't waste time and money before the overall timing is right.
The following rules are presented from the buyer’s standpoint, but sellers should be acutely aware of these things too:
The first rule for buyers is: Know what YOU are looking for. Buying an agency is risky, expensive, and a LOT of work for the buyer. Do your homework first.
*Not every agency is worth the same to you as it is to other potential buyers.
- What agency would fit the best with what you already own?
- What can YOU bring to the table to enhance its value after the purchase?
In other words, what agency can you buy that will result in a 1+1 = 3 scenario? (or even 4?)
- This is so important, that if the resulting effect of 1+1 is not more than 2, then perhaps you should not buy it at all.
Another rule for buyers is: YOU are for all practical purposes "selling" yourself personally and/or your existing company to that seller at this point as well. That’s because if you really want to buy that target agency, someone else probably does also. It’s about a lot more than just price and terms.
So, why should this seller sell to YOU?
*Be ready to sell yourself and/or your company as the most appropriate buyer for that particular agency.
- The seller is almost always looking for a buyer he or she feels comfortable with personally and believes will take proper care of the agency, its employees and its customers post-sale.
- If you fail this unspoken test, you can lose the opportunity before you ever get to issues such as price and terms.
The third rule for buyers: Be ready.
Be ready financially -- a strong balance sheet, good banking relationships, and enough uncommitted cash flow with which to do the transaction are essential. Be ready with your own time -- if your time is already fully committed, how are you going to handle the additional management burdens?
Another rule for buyers: Consider the basic steps in an agency sale.
- Is there a business broker involved, and if so, on which side does their allegiance lie? Which party pays the commission? If I as the seller sign a listing agreement, can I get out of it, and how long does it last? What if I bring the buyer to the table myself, do I still owe a commission to my broker under an “exclusive right to sell” agreement?
- Can or should both sides use the same attorney or C.P.A. in order to save professional fees?
- Should you sign a confidentiality agreement up-front? At what point?
- Will this deal be seller-financed in whole or in part, or do I need to get a banker on-board early and see if financing is available beyond what cash I have for the down payment?
- Am I willing to personally guarantee all or part of my agency's promissory Note to the seller for the balance of the purchase price, or to pledge additional collateral?
- How much cash will I need for working capital until the cash flow situation in the new agency settles down following closing?
- Do I need an agency valuation, and if so should it be a full-blown appraisal or just an opinion letter? Will my banker require an appraisal in order to loan me the down payment or all of the purchase price as the case may be?
- What role does a letter of intent (an "LOI" or "terms sheet") play? What kind of LOI should you create? Should it be binding on both parties or non-binding, or should only portions of it be binding?
- Will the seller request a good-faith cash deposit up-front, perhaps paid into escrow? Refundable or non-refundable?
- What due diligence is needed, and when, and should the other party pay part of the cost if they back out prematurely for no good reason?
- What contracts are likely to be needed, and which side should have the subtle advantage of drafting first and controlling the documents (customarily the buyer, since it has the most risk in how the transaction is structured and written up)?
- What should you expect at closing?
- Will an independent third-party professional escrow be necessary for the eventual closing?
The fifth rule for buyers: Know the legal basics.
- What are the crucial legal distinctions between an "asset sale" and a "stock sale" that will determine the overall structure of the entire deal?
- What additional risks do I effectively assume if I buy the stock of the seller's corporation, as opposed to buying the assets out of that corporation and thereby shedding most of those risks?
- What to do with the employees?
- What about a non-compete agreement with the seller entity as well as the individual owner(s) thereof, or with key producers of the target agency who might leave following closing and go right into competition with the very agency you just paid a lot of money for; or
- Does the target company already have those crucial confidentiality agreements and non-piracy agreements in place with key employee producers and/or independent contractors, and if so are they enforceable and transferable?
- You need to know the basics, but you will definitely need professional help to get this right.
Another critical rule: Know the tax basics!
- If I personally buy the company's stock from the seller, I'll have no tax deductibility on the purchase price. Does that matter to me, or would I rather have that higher tax basis and thereby pay less tax when I re-sell the company sometime in the future?
- Or, should I have my own company buy that same stock instead? Can my corporation or LLC buy stock in another without causing serious tax consequences?
- Am I comfortable with the hidden or unknown risks in this industry or this particular agency that come along with a stock purchase format, including the risk of prior taxes unpaid or under-paid by the target corporation, or do I want to insist on an asset purchase format instead and thereby try to “shed” most of those potential liabilities? Can I mitigate that risk by having the selling stockholder indemnify me for all or part of those taxes, interest and penalties, or even other unknown and/or unexpected exposures?
Never forget, there are three parties to every agency sale -- the seller, the buyer, and the IRS. A sale can be structured as a lose/lose/win (guess who the losers are…); or, the same sale can be re-structured to constitute a win/win/lose. If there is a “loser” in this deal, you want it to be the IRS.
- The taxes on sale of an agency can exceed 50% of the total sale proceeds if the sale is structured wrong!
- The seller can even end up owing more to the IRS at the front end than he receives as the down payment from the buyer . . . a particularly unfortunate (and generally avoidable) result of poor tax planning.
- You don’t need to be a tax expert; but you do need to know there are ways to mitigate this kind of tax disaster and also be able to point the seller in the right direction for professional help.
- You need to be willing to work with the seller to resolve what may be critical issues to the success of the sale.
- You need to know the basics, but you will need professional help to get this right.
The seventh rule for buyers: Know how to use your own professional advisors, and when to bring them into the picture (earlier is better, even up to a year or more under some circumstances).
- CONTROL your professionals in order to keep expenses down and prevent them from killing your deal. It’s YOUR transaction, not theirs. Get advice from them, but do not let them renegotiate the sale.
- Keep relationships cordial. You will almost certainly need help of some kind from the seller after the sale closes, so don’t let your professional advisors poison that well.
MOST IMPORTANTLY: The most important rule for buyers (and for sellers too for that matter): The sale must be perceived as a “win” on both sides. In most cases, neither side is compelled to do the transaction. If either side concludes that the sale is a “lose” for them, then the deal is likely off at that point.
Some special situations will be covered in more detail in later chapters but deserve a brief mention now:
Many agency owners would love to sell their company to their key producers, but they don’t think it’s possible. The most frequently cited reason is “but they don’t have any money.”
You work with these key producers every day. You probably already know they have the basic talent to run the agency, or you would not even consider selling to them. They may already have been running it for many years already from a practical standpoint. Only money seemingly stands in the way.
The fact is, the money issue can almost always be handled to everyone's satisfaction. The REAL key issue is instead, “Do they have the fire in the belly, and the risk tolerance, to be an entrepreneur?”
The heart of an entrepreneur is an intangible that can’t really be measured or pinned down; but if your key producers have what it takes to be one, then you can probably arrange win/win terms that work financially for them and give you a better long-term after-tax price than you could receive from an outside third-party sale.
As always, YOUR expectations need to be reasonable. Just as with a third-party sale, the price and terms must “pencil-out” for the buyers in any internal succession. The down payment is likely to be less, and the seller financing will probably run for more years. Terms are likely to include a way to split the fruits of future success.
We’ll discuss this more in subsequent chapters, but suffice it to say that if your key producers have what it takes to succeed after you are out of there, then internal succession can be your best exit strategy financially. It can also be an excellent way to attract and retain top-notch producers with an expectation of participating in the buying group and a way to ensure a satisfactory sale of your agency when the time is just right in the future.
Family sales are a particularly difficult kind of internal sale. All the usual considerations of internal succession apply, plus uniquely complex tax considerations.
The IRS is deathly afraid parents will do something nice for their children. So an entire chapter of the tax code is devoted to making sure the IRS gets its “fair” share (they consider about half the total value of the agency to be “fair”). Needless to say, this adds to complexity.
Intra-family dynamics can be even more complex. Just because a child has the talent, does not mean that he or she has the experience to run the agency. And talent + experience still do not mean the child has the intangible heart of an entrepreneur. Even establishing the price can be more difficult than in an arms-length sale since a child can find negotiating with a parent over price and terms to be essentially impossible.
What about “Price”?
Ultimately, the “Price” must be justified by (i) the future cash flow the buyer can reasonably expect from the acquired agency, and (ii) the risk the buyer must take in order to receive that cash flow.
But “Price” is much more than just money to a seller. It can even be seen by him or her as a reflection of their individual worth as a person. A buyer overlooks this only at their great peril.
Starting the conversation with comments designed to push down the price can be fatal to an emotional negotiation like this. You are not haggling over the price of a car here. “It will have to pencil-out, of course, but it’s probably worth quite a bit…” is often a good starting point comment for you as a buyer.
Emphasize creating a “win/win” transaction overall. Remember, the seller most likely does not HAVE to sell, and you likewise do not HAVE to buy. As soon as either party perceives the transaction to be a "lose" for them, the sale will die.
An emphasis on AFTER-TAX cash to the seller is also extremely helpful. Thanks to our overly-complex tax laws, it is often possible to restructure a sale with a lower stated “price”, but more actual after-tax cash for both the seller and the buyer.
An “all-cash” deal is low risk for the seller, but much riskier for the buyer. Therefore, the price is almost always significantly lower in an all-cash transaction in order to compensate for this mismatch in the risk area.
What about payment terms?
Terms are not as emotional, but in a practical sense can be even more important than price. In fact, your authors are fond of saying "The price is not the price . . . terms are everything!" Terms determine how the sale will “pencil-out” for the buyer. For example, seller financing over a period of 10 years is much easier for the buyer to pay for out of ongoing cash flow from the agency, and thus justifies a higher price.
Terms can also dramatically affect taxes for both sides. Since it only counts if you get to keep it, this consideration alone can be more important than price.
Terms affect the risk for both sides. Terms so stiff that the sale cannot possibly pencil-out will obviously raise the risk for the buyer. Less obvious, the seller may incur more risk from draconian terms like this as well. An upside down buyer is much more likely to look for an excuse to rescind a sale or some way to sue the seller for misrepresentation or a breach of the seller's representations and warranties in the purchase and sale agreement.
Terms can be massaged to share the risk, thus lowering the effective risk for the buyer. Lower risk translates to a higher price. It is fairly common for part of the price to be dependent on future results and retention of key target accounts (called a partial "earn-out"), which is a great way to share risk and reward.
Other factors will affect the price as well. For example, do key employees have, or can you create at closing, enforceable non-competes (see our later chapter entitled NON-COMPETES)? What about the major customer accounts? Will key carriers terminate their contracts when the "founder" of the target agency is no longer around?
What about the building occupied by the agency? Does the agency’s owner also own that building? Is the Lease transferable, and/or how much longer will it run? Are there any options to extend or to buy the building and not have to incur major expenses in moving the entire agency later on? Is the agency owner a personal guarantor on that existing Lease, and will the landlord release him or her from that guarantee at closing or simply execute a brand new Lease with the new owner? Is rent likely to be raised post sale?
Finally, it’s not all about “Price” anyway. Price certainly matters; but is rarely the key to a sale.
A seller is likely to have other “hot buttons” that can make or break the deal. Some are obvious, such as how key employees will be treated post-sale in all respects. The seller may want to see to it that a couple of his "pet" long-term employees are retained for a number of years at the buyer's expense.
Other hot buttons can be quite unusual. Your authors well remember a sale that hinged on providing a parking space on the agency’s property for the retiring seller’s yet to be purchased RV. The buyer initially balked, which would have killed the sale. It has been many years now since the closing, and the seller never did quite get around to parking his RV in that spot that seemed so crucial to him at the time.