Structuring Rollover Equity in Business Acquisitions

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Rollover equity is a pivotal strategy in small business acquisitions, where sellers retain a minority stake in their company post-sale. This method facilitates a smoother transition and aligns long-term interests between the seller and the buyer. A detailed discussion on the Searchfunder forum brought to light the multifaceted aspects of structuring rollover equity, especially in scenarios involving SBA loans.

 

Defining Rollover Equity


Rollover equity allows a business owner to reinvest part of their equity into the new company structure post-sale, maintaining an interest in the company’s future performance. This strategy is beneficial for bridging valuation gaps and ensuring the seller’s ongoing commitment to the business’s success.

 

Critical Considerations in Rollover Equity Agreements

 

  1. Decision-Making and Voting Rights
    Defining the seller’s decision-making rights post-sale is crucial. Joseph Gerstel, Partner at Lieberman & Klestzick LLP, emphasizes, “Voting is no different than a regular investor. You’ll generally have decision rights, with protections for minority investors.” This arrangement prevents potential conflicts by clearly outlining the extent of the seller’s influence.

  2. Financial Contributions and Obligations
    Clarifying financial obligations is essential. Gerstel elaborates, “Everyone shares in all opex,” which means post-transaction operational expenses should be equitably shared, keeping financial responsibilities balanced among all stakeholders.

  3. Seller’s Operational Role
    The extent of the seller’s involvement post-sale varies and should be carefully negotiated based on the business’s needs. Juan Gomez, a private investor, advises, “Negotiation of those rollover terms should come as you go through some due diligence to understand what level of involvement is needed.” This flexibility allows the buyer to tailor the seller’s role as they gain a deeper understanding of the business.

  4. Compensation and Benefits
    If the seller is involved operationally post-sale, terms of compensation beyond equity dividends need to be explicitly agreed upon. As Hallam Stanton from Groundswell Advisors notes, it’s crucial to “separate out those deal points that impact the seller as an equity holder and those that implicate his role as an employee/consultant of the company post-closing.

  5. Rights upon Future Sale
    Stanton also suggests establishing clear future sale rights, “A common way to do this is to agree that you have a call right after X years.” These terms, agreed upon early, can prevent future complications.

  6. Exit Strategies and Buyout Options
    Tom Korzenecki underscores the importance of predefined buyout terms, stating, “If I’m representing the acquirer/investor, (and the seller is perhaps staying on in some transitional/consultative role), I would want a call on his rolled over equity since the honeymoon generally will last only 12-18 months.

 

Legal and Financial Implications

 

  • SBA Loan Considerations: Compliance with SBA’s equity injection requirements is critical. Brad Hettich from Commercial Lending X points out the necessity of bringing sufficient equity into the transaction, “You need to bring 10% equity into the transaction.

  • Tax Implications: Both parties must consider the potential tax implications of rollover equity. The seller’s retained equity and any subsequent sale can affect capital gains, while operational earnings may be taxed as income.

 

Best Practices for Structuring Rollover Equity

 

  • Clear Contractual Definitions: Ensuring all terms related to rollover equity are explicitly defined in the purchase agreement is fundamental to prevent ambiguity.

  • Separation of Employment and Equity Agreements: Distinguishing the seller’s shareholder role from any operational roles is crucial for clarity in compensation and responsibilities.

 

Conclusion


Crafting a rollover equity arrangement requires careful legal, financial, and operational planning. By clearly outlining terms and understanding each party’s expectations and obligations, buyers and sellers can create a structure that supports the business’s success and protects their investments. The insights from the Searchfunder forum, enriched with expert advice and practical considerations, demonstrate the value of thorough planning in navigating these complex transactions effectively.

 

FAQ

Frequently Asked Questions

Rollover equity occurs when a seller retains a portion of their ownership stake in the company after selling it. This allows the seller to participate in the future growth and profitability of the business, aligning their interests with the new owner.

Rollover equity helps bridge valuation gaps between what a buyer can pay and what a seller believes their business is worth. It also ensures the seller remains committed to the business’s success post-sale, providing continuity and stability during the transition period.

Sellers retaining rollover equity typically have decision-making rights similar to other minority investors but with specific protections to safeguard their investment. These rights and protections should be clearly defined in the equity agreement to prevent future conflicts.

Post-transaction, the seller shares in all operational expenses alongside the new owner. This includes routine expenses and obligations arising from business operations, ensuring that financial responsibilities are equitably distributed.

The seller’s role can vary significantly. Options range from no operational involvement (silent partner) to active participation in management or board activities. The extent of involvement is usually determined during negotiations and is based on the business’s needs and the seller’s expertise.

If sellers are operationally involved post-sale, their compensation, benefits, and any reimbursement policies should be negotiated separately from the equity terms. These details should be outlined in an employment or consultancy agreement to maintain clarity and prevent disputes.

It’s crucial to establish clear terms regarding the seller’s rights in future sales. This might include first rights of refusal, tag-along rights, and drag-along rights. Additionally, specifying conditions for buyouts or calls on the seller’s remaining equity can prevent misunderstandings.

When structuring rollover equity involving an SBA loan, compliance with equity injection requirements and understanding the tax implications are critical. The buyer needs to ensure that the equity arrangement complies with SBA regulations, which often dictate that a certain percentage of equity be brought into the transaction, typically around 10%.

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Picture of Written by Roman Beylin

Written by Roman Beylin

Roman Beylin is the founder of DueDilio, a leading online marketplace to assemble an M&A deal team. Our large and growing network of highly vetted independent professionals and boutique firms specialize in M&A advisory, due diligence, and post-acquisition value creation.

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