Over the past few columns, I have discussed issues related to selling the family business.
I’ve covered the importance of evaluating your life goals along with the dollars involved in a sale, the value of shaping up the management and financial statements, and the need to leverage expert advice. This final installment will convey a few techniques to optimizing the deal with the buyer.
It is key to understand that the buyer and the seller have divergent interests in the structure of the transaction, most of which revolve around stock and assets. The seller wants to sell stock, and the buyer wants to buy assets. There are a few reasons for this.
Imagine the business in question is a construction or drug company, and is sold. If years after the sale a bridge the company engineered and built collapsed, or a severe side effect was discovered with a drug or medical device the business provided, who is held liable? The answer is the owner of the stock. One of the main negotiation points in selling a business is will it be a sale of stock or assets.
The new owner, if they purchase the stock of a company, becomes liable for any claims against that company for all its previous work. As such, it is in the seller’s best interest to sell the shares of the business to shield it from any future responsibility.
There is another reason why the seller is interested in selling stock. If the value of the company had seen significant growth in the value of its stock over time, a sale of stock would be subject to a capital gains tax rate. With the current tax structure, the capital gains tax rate is lower than the income tax rate. This could translate into substantially greater net value from the sale.
On the flip side, the buyer would prefer not to purchase the stock of the company, but rather to acquire the assets. This enables the buyer not only to avoid any potential liabilities, but also to gain the depreciation and amortization benefits that come along with purchasing assets.
As an aside, assets that are not considered in direct line with the operations of the business should also be removed from the business. For example, having the land the business sits on residing in a separate LLC makes the business easier to buy if the buyer wanted to relocate.
In the classic book “Getting to Yes,” one of the main concepts is that many times there are components of the object in a negotiation that have little value to one party but a lot of value to the other. In negotiating over an orange, it might turn out that one party values only the pulp for the juice, while the other values only the peel for cooking.
Along these lines, there is a group of techniques that can be used to optimize the deal for one or both parties.
Terry Stanaland, a CPA and attorney in Greensboro and national lecturer on financial and tax topics, describes it this way: “Restructuring the deal from a simple cash transaction to correctly incorporating a noncompete clause, a consulting agreement, and/or an employment agreement can help achieve greater bottom line dollars for both parties involved in the sale.”
For that matter, the buyer is certainly going to want the current owner to stick around the business for a while anyhow.
Understanding and working with the elements important to the buyer that reduce current and long-term taxes, lower liability risk, and simplify the transaction can help the family business owner optimize the overall value of the sale and ultimately get the deal done.
In two weeks: The North Carolina Family Business of the Year
Columnist Henry Hutcheson is a nationally recognized family business speaker, author and consultant with ReGeneration Partners in Raleigh.
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