Structure an Offer That Let's the Seller Participate in Eventual Upside
May 09, 2024
by a searcher from College of Charleston in Carpinteria, CA, USA
I’m preparing to submit an LOI to purchase a small company in the Food &Beverage space at 1x TTM revenue. The acquisition target is a S Corp with three shareholders: 51%, 39%, 10%. The founder owns 51%; the other two shareholders were given sweat equity. I’d like to buy 100% of the company but create an opportunity for the founder to share in the potential upside – either a share of profits, or eventual sale, etc. I looking for advice and options on how to structure the offer.
from Eastern Illinois University in 900 E Diehl Rd, Naperville, IL 60563, USA
If you are doing SBA financing, you have two potential options. You could include with the purchase a seller note that has forgiveness to it if certain financial hurdles are not met. So you can have it set up to pay them but if certain hurdles are not met you no longer need to make that payment and the seller note or that portion of it is forgiven. In essence you are reverse engineering an earn-out. The SBA does not allow traditional earn-outs. The only problem with this method is that the lender has to figure that note into the debt service. However, if it is on full standby for the first two years (meaning no payments) then many Banks will not count it in debt service if it is forgivable if certain EBITDA metrics are not hit.
The second option you can do with SBA financing is you can now do a partial business acquisition. Under a partial business acquisition you can keep the seller in the business. So long as the seller retains less than a 20% ownership interest they are not required to guarantee the loan. You do not have to provide the seller a salary going forward, but they would have the right to profits and distributions based on their percentage ownership. One thing to keep in mind with a partial business acquisition is that you have to do that as a stock or membership interest purchase, and the existing company will then be the borrower on the loan. There is also some impact on how you can use seller notes as equity in a stock or membership interest purchase.
If you would like to discuss options further, please do not hesitate to contact me here. or directly at redacted Good luck.
from Creighton University in Los Angeles, CA, USA