Although I’ve been a business broker for years, I only recently just did my first earn out. For those of you who aren’t sure what that is, it’s when a portion of the sale price is held back from the seller and he literally has to “earn out” the balance. In most businesses an earn out isn’t necessary but there are certain businesses where it makes perfect sense. The business I sold was a commercial janitorial business. The seller had very few accounts and was asking top dollar for the business. The buyer was willing to pay top dollar if the seller would guarantee that the business would perform equally as well when he took it over.
I have to admit when we first started this none of us, the seller, myself nor the two buyers, had a clue what the earn out should contain. I proposed that they seek out the advice of an attorney since one of the buyers was a CPA and he didn’t know. From what I can now ascertain, the best earn outs are not too long and based on gross earnings. The longer the earn out, the more chances something will go wrong. Most sellers are not too keen on having to stay involved in the business, so they might dismiss an earn out before getting all the facts. Having an earn out doesn’t mean that you have to stay involved in the day to day operations of the business. It simply means that if all hell beaks loose and something catastrophic happens in the business then the seller, who has been doing this successfully for years, can step back in and get this thing on track again. In our case, our earn out was based on the net profit.
Having an earn out based on the net profit is more complicated, how can the seller trust that the buyer will run the business as efficiently as he did? In our case we fixed and capped the operating expenses at the same levels that the seller sold the business at. This way it didn’t stop the buyer from running the business as he see’s fit, but also protects the seller from the net profit being lowered due to different operating styles. Everyone in my deal was intelligent and was interested in not having the document cost a fortune to construct. They found some example documents and began working out the most difficult points without an attorney so that when they did bring it to the attorneys for they’re blessing it was simple, fast and it saved them thousands from going back and forth trying to agree on the fine details.
The most difficult part of the document to agree on was the penalty of the earn out under performing during the life of the earn out. The buyers perspective was that they were willing to pay a premium, in this case 3.3 times net earnings. However, if the net profit went down during the quarter then the purchase price of the whole business was re-evaluated in that quarter. That works well in the first few quarters but it isn’t that simple a year later. The sellers perspective is that he should be penalized at the same rate as in the beginning, he feels that he is “earning his money out” therefore the risk should be going down over time. In our case, the buyers gave the seller opportunity to make back any potential loses in the next quarter, even beyond the earn out period.
Regardless of what is happening in a deal, it all goes back to what my first broker, that I worked for years ago said, "if you have a willing buyer and a willing seller, you will overcome all the obstacles in your deal."
About The Author: Christina Lazuric is an Orange County Business Broker who shares her broker experiences with BizBen readers and has had varied direct small business experience in the past but now assists small business owners sell their business and offers business buyers find their dream business to operate. Phone Christina direct at 949-257-7823.
|Helpful Resources To Assist In Selling And Buying California Businesses|
|Mark Chatow, Esq.: Legal Services For Buying, Selling Businesses
Mark has a broad range of small business purchase & sale experience from analyzing potential acquisition targets to successfully guiding buyers and sellers through the purchase & sale of small businesses. Mark can assist with contracts, negotiations, legal matters, etc. Reach Mark at 949-478-8393.
|Ranvir S. Sandhu, Esq. - Legal Services For Buyers And Sellers
I've worked at top Bay Area law firms and have extensive experience with business entity formation, mergers, dissolutions, conversions, employment matters, including experience in reviewing and negotiating transactional documents such as leases and purchase agreements.
|Brad Steinberg, Broker - Laundromat Specialists
PWS is the leading laundromat broker in California. Since 1968 PWS has brokered over 2,500 laundromat sales. With over 90 employees dedicated to the coin laundry industry, PWS has 18 licensed agents, a 3 person in-house finance department, 10 service technicians and a 20 person parts department.
|Joe Sandbank, Esq. - Legal Services
I have provided legal counsel to business buyers, sellers and brokers for over 17 years. With prior experience as a business broker and SBA loan officer, Joe brings both a practical and legal approach to all aspects of the business acquisition process.
|Diane Boudreau-Tschetter: Escrow And Bulk Sale Services
California Business Escrow, Inc. is a full service independent escrow company serving all of California and has expertise in a wide range of escrows. Our team prides itself on providing an exceptional escrow experience. For more info phone Diane Boudreau-Tschetter at 888-383-3331 or 209-838-1100.
|Helen Yoo: Escrow & Bulk Sale Services - Southern California
New Century Escrow, Inc. is a fully licensed & bonded independent escrow company. Over 20 years combined experience in handling bulk escrow transactions. Multi-lingual staff that speaks your language, including Korean, Chinese, Vietnamese. Call Helen Yoo direct at 626-890-1151.
|Willard Michlin, CPA, Certified Fraud Examiner, Due Diligence Services
Willard Michlin, CPA #106752, offers buyers step by step training & assistance in doing Due Diligence Services when they are thinking of making an offer, or are in process of investigating a business purchase. He helps to determine the actual net profit even when there is cash. Call 805-428-2063.
|Elizabeth McGovern: Escrow Services - SF Bay Area
McGovern Escrow Services, Inc., is a leading independent escrow company. We are a trusted partner with our clients, assisting them through the tangled bulk sale & liquor license transfer process. We provide attentive, quality & innovative customer service. Phone Elizabeth McGovern at 415-735-3645.
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