Selling to the Key Employees of Your New Jersey Business
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Business Law Attorney
Succession Planning and Your Key Employee(s)
Selling to Key Employees of Your Business From the Perspective of Both the Seller and the Buyer
On the face, it seems like it should be a fairly simple conversation. We have an entrepreneur who set out on his or her own and built a thriving business. But then every owner eventually exits, either voluntarily or involuntarily.
When clients tell me they are retiring, I always ask why they’re retiring from their business. Sometimes they’re retiring because the business is taking too much out of them, or because of a government bureaucracy they’ve grown tired of fighting, or even from a business they love but feel needs fresh blood. Others are retiring to start another small business they’ve dreamed about for years, to take the trip they’ve always dreamed about, or to spend more time with the kids and grandkids.
Several clients I’ve spoken to who have acknowledged their lack of succession planning options are really avoiding the issue of what comes next. That’s a big issue. As we look at retirement, one day a person is helping others, and the next day they are left with only a future yet to be created.
When looking at the prospect of selling your business to your key employee(s), it doesn’t have to be here today, gone tomorrow. It’s quite possible to groom a staff member to become the owner of your firm. Transition of ownership as well as the responsibilities of managing the firm can come over the course of several years, if the planning for that transition begins with enough time before your eventual “retirement”.
Overcoming Obstacles to Selling to a Key Employee(s)
I’ve often heard that business owners can’t get the best price for their business when they do an internal sale to a key employee. The numbers are too large, the financing is hard to come by, or they’d have to finance the deal themselves when another party might be willing to come in and offer cash.
Internal successions can work, and work extremely well. They need more foresight and time to work than some external sales might, but that effort can pay dividends for you and your staff. It’s not likely that you can get an internal sale completed, from beginning to end, within a year. With a longer time horizon (say 3 to 5 years), an internal sale can be more feasible. A young buyer, can benefit you as the seller from a tax standpoint by spreading the gain on sale over several years, and can allow the seller to retain some influence on the enterprise they have nurtured for so long.
The Employee who wants to be a future owner
As an employee, do you want the additional hassle that goes with the ownership of a business, including greater risk, time spent on the less enjoyable parts of running a business (including hiring/firing, negotiating with vendors, etc.)? Here is where an open and honest dialogue about the nature of being a business owner can be beneficial between founders and potential successors.
Discussions with your spouse are also essential when broaching this subject. While you may have the stomach for the risk, does he or she? How would your spouse feel about acquiring additional debt in order to finance a transaction? As a potential buyer, you owe it to yourself, your family, and to the business owner whose firm you are considering buying to do your own work and think deeply about these issues.
My insight as a legal counselor who opened his own firm years ago is that if you’re going to be an entrepreneur, you really have to want it. You have to want to be your own boss enough to fight through all of the small yet essential tasks that seemingly get in the way of actually working the business. Things like dealing with banking relationships, technology integration, marketing activities, employees, etc. The list literally goes on and on.
Ultimately, there is not right or wrong answer. I’ve got friends who are grinding out careers in private and public business. I’ve got other friends who are working through internal succession plans and are purchasing businesses that they’ve been a part of for their entire careers. Success is possible in all situations, as long as it is the right situation for you, your family, your personality, and your life’s vision.
A Sell/Buy Agreement and a Preliminary Statement of Guidelines
Discussing the sensitive issue of selling/buying a business to key employees is difficult and delicate. It requires great trust on both sides and great openness. I’d propose the following statements as a guideline for both the existing business owner and prospective business owner.
- I promise to treat these discussions with the confidentiality and care that we would give to our employees.
- I promise to make appointments in advance to discuss our potential transaction, and I promise to honor these appointments with our customers.
- I promise to be as prepared for our discussions as I would be for our regular weekly meetings.
- I promise to make every effort to see things from your point of view, and ask for permission to ask (sometimes personal) questions that help me gain a better understanding. I promise to understand if you need some time to think through your answers.
- I promise to understand that you’re going to ask me some uncomfortable questions, and I promise to answer them honestly. I also promise to ask for some time to reflect and gather my thoughts when needed.
- I promise to be a true professional regarding the outcome of this process. I acknowledge the outcome of this process is uncertain. I acknowledge the possibility that we may not be able to reach an agreement on this transaction, and to make every effort to not allow these discussions to color our working relationship if a transaction is not consummated.
Do you have a question(s) not addressed here?
If so, contact Fredrick P. Niemann, Esq. toll free at (855) 376-5291 or e-mail him at firstname.lastname@example.org to schedule a consultation about your business succession thoughts. He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to. He’s proactive, experienced and creative to make your goals, your reality. Call him today.
Fredrick P. Niemann, Esq., NJ Passing on a Business Attorney
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