Exit Strategies: How To Avoid Troublesome Earn-Out Problems
The sale of Al Gore’s cable television operation, Current TV, to Al Jazeera for $500 million is very old news: the deal closed in early 2013, allowing the former vice president to monetize his investment and giving the upstart Al Jazeera’s U.S. operation access to viewers in tens of millions of homes.
And yet the deal was just in the news again, as Gore and his partners are suing to get the final $65 million they say they’re owed, as part of an apparent 18-month escrow deal. Precise details weren’t disclosed – Gore’s suit was filed under seal. But the drama playing out in Delaware courts is all too familiar to those of us in the middle market mergers and acquisitions business: buyers, both private equity funds and strategic acquirers, are seeking to tie up bigger and bigger amounts of deal proceeds in ever-longer earn-outs and other escrow arrangements.
If you’re a founder/owner/entrepreneur/CEO/management team considering selling your business anytime soon, this article is aimed at helping you avoid the pain and delay – and potential loss of a big percentage of your business’s value – that can occur in earn-outs, post-closing purchase price adjustment arrangements and other escrow provisions. I’ve been advisor to more than 250 sellers in transactions over the past 25 years, with billions of dollars in combined value realized, and few things are as vexing to a company founder as coming to the end of what should be a highly profitable earn-out period and discovering that, instead of a hefty wire transfer and a warm handshake, costly litigation lies ahead. This is one reason why some businesses know that virtual accountants are the logical way to go, to keep their accounts, finances and anything else financially related, in check. Hopefully negating the possibility of litigation in the future.
To get the latest data and trends on earn-outs and other post-closing nightmares for sellers, I reached out to the good people at SRS/Acquiom. The firm manages escrow and other closing and post-closing arrangements on hundreds of deals, representing sellers, and has compiled one of the most valuable databases on deal outcomes.
Christopher Letang, a managing director at SRS/Acquiom, oversees post-closing matters for the firm’s clients. He makes sure they get paid. And if there’s a conflict on an earn-out or another dispute involving escrowed funds, he sorts it out. “Earn-outs are prone to dispute for a good many reasons,” Letang tells me. And the disputes are increasing in number and involve larger percentages of deal proceeds, Letang and his colleagues have shown:
-SRS/Acquiom found that in 2013, earn-outs represented a stunning 40% of potential deal proceeds, up from 23% three years earlier.
-Earn-outs are lasting longer, with a shift from one-year hold-backs of deal proceeds to increasing use of two-and-three-year hold-backs.
-Two-thirds of deals end up with a battle over escrowed funds, with buyers trying to withhold cash. And quite a few of these disputes arise only in the final week of an escrow period, just when a seller is hoping to finally close a chapter of his or her business life and move on.
-Private equity buyers, also known as financial buyers, are the most likely to file claims seeking to hold back money, followed by privately-held strategic buyers, public strategic buyers and, lastly, foreign buyers.
So, we’ve established that post-closing claims are a big and growing problem for sellers. How to minimize the heartache? First, regardless of which type of buyer you choose – and it is your choice (more on that later, and it’s surprisingly important) – a few of my own general recommendations: be honest with yourself about your company’s likely future performance, as you are while running it, and don’t bank on the high end of an earn-out range just because it’s in the agreement; if you and your management team are kept on (and you should retain key players leading up to and after a sale), plan to work as hard and be just as focused as before the sale; if there is any money held back in escrow, then the buyer is your partner for that period and you should communicate frequently and honestly and avoid becoming strangers.
“The deals that get ugly are when there’s no relationship left and all you’re looking at are spread sheets,” Letang notes. He and his SRS/Acquiom colleagues have their own advice, and it’s great common sense that’s too often left out of merger agreements:
“When companies develop their product or service, there tend to be many unpredictable turns in the road. Companies start down one path, figure out that a different strategy makes more sense, and make appropriate changes. While this seems obvious, it is surprisingly difficult to account for when the parties negotiate and define terms of earn-outs. We often see earn-out provisions with deadlines and specific requirements that appear to be one way, but not the only way, to reflect the value of the business acquired.”
“The result is that earn-outs sometimes are technically missed but for reasons that are caused by changes in business strategy that do not necessarily mean that the buyer is not getting the value sought from the company purchased.”
“To avoid this, we suggest that the parties acknowledge at closing that nobody really knows how the future development will progress and avoid setting milestones tied to the plan as it exists at closing, especially for tests that will be years out into the future. Instead, our suggestion is that they focus on the results of what would constitute ‘success’ with respect to this acquisitions, or clear value inflection points that cannot be bypassed.”
Got that? Results, not technical milestones. Just as you’d measure success in the business while you’re running it as the owner.
Letang also warns that accounting interpretations can produce earn-out and other post-closing drama. Merely specifying that the books will be kept in accordance with generally accepted accounting principles, or GAAP, isn’t enough. As you well know, GAAP allows for a lot of judgment calls. For instance, how high to set reserves? An overly conservative approach can reduce EBITDA or whatever income measure your earn-out relies upon. The agreement needs to be more specific and to anticipate a buyer looking for an edge.
Remember above when I said that you, as owner, get to choose the buyer? Yes, the size of bids that come in will weigh heavily in your decision. But there’s one bid you’ll only receive if you are knowledgeable enough to seek if out: an offer from your employees to buy part of all of your company. From 30,000 feet, two things to know: one, selling to an Employee Stock Ownership Plan, or ESOP, can often bring you the best offer because of significant tax savings involved; and two, ESOPs are an excellent way to avoid earn-out and other post-closure disputes.
How can an owner realize greater proceeds by selling to an ESOP than to a private equity buyer, say? First, if your business is a C Corporation and you reinvest the proceeds from selling it in qualifying equities (yes, stocks), you can avoid capital gains taxes. Those can add up to about 23% of sale proceeds, so that’s a big advantage. Secondly, if your business is now, or becomes after the sale to an ESOP, an S Corporation, it pays no federal or state income taxes (ESOP participants pay taxes when they retire or otherwise withdraw funds). That means more cash flow to service debt and thus a potentially larger acquisition price. The biggest bonus is that, as owners, employees are often more productive, less wasteful and more inclined to provide ideas that help a company grow and prosper; they act like owners!
Finally, it’s my experience that selling to an ESOP greatly minimizes post-closing trouble. Many business owners sell a partial stake to an ESOP, stick around to run the business and remain controlling owners. With all that skin in the game, no need to use an earn-out. And when selling the entire company, it’s typical that the management team below the owner sticks around. They’re intimately familiar with the business and its prospects, likely have a higher level of trust in their soon-to-be former boss, and thus there’s far less call for an earn-out or other post-closing purchase price adjustments.