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Surviving an Earnout Provision in a Business Sale

If you are selling a business, the buyer may want to pay part of the price through an earnout provision. This is a contractual arrangement in which the seller receives additional payment in the future if certain financial goals are met. In other words, part of the price is contingent on the performance of the company after the sale.

Earnout sales are becoming more common, especially in high-growth companies, those with unproven products, and situations when the buyer and seller disagree on valuation issues. By some estimates, up to half of small business sales involve earnout provisions lasting two to five years, and involving 15 to 50 percent of the purchase price. What are earnout provisions based on? It varies depending on the agreement, but the target goals generally involve net income, gross revenue, the number of new customers or earnings.

An earnout may sound attractive but there are a number of dangers to watch out for. Here are five:

Danger #1 Losing Control

Obviously, after you sell the business, you're no longer in control. This factor can affect the bottom line and ultimately, your payout. For example, let's say your payout is based on the net income of the company for the next few years. You're now subject to someone else's management and accounting practices. There are a lot of ways the new owner could intentionally or unintentionally suppress net income by inflating overhead or accelerating capital expenditures.

The new owner might also make substantial changes to the company's processes and operations, which could affect net income negatively. Perhaps the new owner doesn't have much expertise in the industry. Or the customers may prefer dealing with the current management. That could result in the business suffering through a few rough years of low revenue — the very years that determine your earnout payments.

What can you do? The most obvious answer is to get the biggest upfront payout possible. Try to limit the earnout to the amount you are willing to lose. Then, if the business begins sliding after the sale, at least you have some level of protection.

Next, have your earnout payments based on a target other than net income. You may want to use gross profit or some measurement that is less easy to manipulate.

Ideally, you should build some measures into the contract that will help ensure that the target goals are achievable. For instance, say your earnout is based on the number of new customers, but the new owner slashes the marketing budget. Without any control over marketing, the chances of meeting the new customer target are slim.

Danger #2 An Ambiguous New Role

Often, when a business is sold, part of the package involves the seller staying with the company in a new role as an employee or consultant. This allows the seller to ease into retirement or another project while providing guidance to the new owner. If you agree to a new position, you'll obviously be in a better position to keep an eye on the bottom line, although ultimately, you're still not in control. You want to make sure that employment or consulting contracts do not include clauses that allow the new owner to demote or replace you after the sale closes. There may be personality clashes or the new owner may be ambivalent about having you stay on in the first place.

Make sure that a non-compete clause doesn't keep you from pursuing other projects you are interested in. You also want the contract to include a way to exit gracefully. Suppose you agree to remain during a three-year earnout period, but find yourself miserable in the role. Negotiate an exit strategy that allows you to leave early without forfeiting the payments.

Danger #3 Not Getting the Details Right

Disagreements can crop up if the parties interpret the terms of the agreement differently. In some cases, buyers and sellers wind up in court. That's why it's important to have a professional adviser iron out the details. You need someone who thoroughly understands your business to facilitate the best results.

The basis for your compensation needs to be spelled out in clear terms. When will the payments be made? How will they be structured? The buyer may want payments to be based on net income, arguing that it is the best indicator of the business's performance. But it may be better to base payments on gross revenue or another measure. As the seller, you can insist that the earnout formula include certain caps on items, such as on the amortization of goodwill, or the depreciation claimed on capital investments after the sale.

Another issue to consider is the possibility that the buyer will turn around and sell the business before all the payments are made. You may want to include a clause in the contract that accelerates your payments if the business is resold. Or, negotiate a guarantee that you will have a stake in the proceeds if a sale occurs before your earnout is complete.

Danger #4 Overlooking Tax Considerations

When a business is sold with an earnout provision, the buyer and seller should plan carefully for the tax consequences. You want to structure the sale to minimize the tax liability. There are important considerations depending on factors such as:

- Whether you sell stock or assets.

- How the earnout formula is designed with respect to the tax rules for installment sales.

- What type of business structure is in place a the time of the sale (C corporation, sole proprietorship, S corporation, partnership, LLC, etc.).

Consult with your tax adviser about the best way to proceed in your situation.

Danger #5 Not having the Right to Audit

It's a good idea to retain the right to have an independent audit of the financial statements that determine your earnout payments. Since there will probably be changes in the company's accounting or management practices, an independent review can frame the post-closing financial statements in terms that are comparable to the way business was conducted before the sale. In other words, you want to compare apples to apples.

Keep in mind that no matter how many details and scenarios you plan for, there may be some unpredictable situations. Decide in advance how disputes will be settled. It's generally a good idea to stipulate in writing that the agreement will be subject to binding arbitration.

An earnout might be a good way to bridge the valuation gap when selling a business. But it is not a do-it-yourself project. A professional experienced in mergers and acquisitions can help protect future earnings, point out pitfalls that might be overlooked, and keep a lid on emotions that may boil over when discussions get heated.

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