Ep046: Exit Planning and Succession with Mike Silverman and Matt Clark

Matthew Clark About Matthew

David Spray
Hi, my name is David Spray, and welcome to another episode of The Icdisc Show. I have a really unique episode today because I have two guests on simultaneously. That's Matt Clark and Mike Silverman. They are both attorneys at the law firm of Denton's, and they're both in the Pittsburgh office. And they have a unique practice around exit planning and succession planning. But it has very much a planning focus rather than a traditional M, a practice that seems to have more of a transactional focus. We talk about all kinds of things around planning, the need for regular meetings to implement succession and exit planning. And we also talk about how ESOPs employee stock ownership plans are one of the best deals in the tax code. That's incredibly underutilized for exit planning. Mike talks in great detail about some of the benefits of ESOP. So this is a great episode for any business owner or key executive at a privately held company to consider. So I hope you enjoy this episode as much as I did. Good morning, gentlemen. How are you all doing today? Good morning.

David Spray
Very well.

David Spray
Good morning.

Mike Silverman
Fantastic.
How are you doing, David?

David Spray
I am doing great, thank you. Well, I've really been looking forward to this interview because you guys really have some great experience that I think will really benefit clients of mine, as well as just listeners to the podcast. So why don't we just kick off with a little background. Matt, why don't we start with you? Oh, by the way, you guys are calling from Pittsburgh today. Both of you, correct?
That's correct.

Okay, so, Matt, let's start off with you. Are you a Pittsburgh native?

Matt Clark
No, I'm actually a native outside of I grew up outside of Philadelphia and made my way to Pittsburgh 30 plus years ago. And I call Pittsburgh home now. I went to Duquesne University for undergrad and then law school. My practice is corporate practice. I work with entrepreneurs and business owners and various areas, but a big part of it is part of their exit planning, and succession planning is a big part of our practice. And so I get to work with fantastic colleagues like Mike, who is certified, but in exit planning and succession planning. And so we just have a fantastic team based in Pittsburgh. But I'm with Denton's. We're the largest law firm in the world, and so we have the ability to work with clients on a truly a global basis to make sure that we're meeting and fulfilling all of their legal needs.

David Spray
Great. That's great. Well, thank you for that quick background. Now. What about you, Mike? Are you a native Pittsburgh bergonian what's the term?

Mike Silverman
I think they call them Pittsburgh.

David Spray
Okay.

Mike Silverman
But yes, I'm born and bred, have always lived here in Pittsburgh. I grew up in the eastern suburbs. I went to college in Baltimore at Johns Hopkins University. I got my law degree at University of Pittsburgh, and then I got a master's in tax law after law school at New York University Law School. And like Matt, I'm a business attorney and I represent middle market companies throughout the lifecycle of a business, and succession planning isn't a very significant part of my legal practice.

David Spray
Okay, that's great. And do you have an accounting undergrad graduate degree?

Mike Silverman
No, undergrad. Odly, enough. I was an engineering major undergrad. I thought I was going to become my patent lawyer, but I fell in love with my tax courses in law school, so I went a different route.

David Spray
Okay, well, sounds good. So one of the things that is I've gotten to know you guys that I've learned is I had a misconception that exit planning and succession planning were basically the same thing. But as I've learned more about this, there appears to really be a significant difference. Mike, why don't you share with the audience how you delineate between exit planning and succession planning?

Mike Silverman
Well, ever y new corporate client that I get, I ask them the rhetorical question of whether they've done their exit planning and succession planning, and the answer invariably is no. And they also have this misconception that you referred to that exit planning and succession planning are redundant with one another. And that is a misconception because they're totally discreet. Exit planning is the planning exercise we go through to identify the structure under which a business owner is going to exit from his or her business. And there's a lot involved with developing that structure. We'll talk about it during the course of the podcast, but we want to do a deep dive into your business to figure out what your goals are personal goals, financial goals, business goals, and then figure out what kind of exit structure facilitates those goals and enables you to achieve those goals. Succession planning is very different. Succession planning, what we're going to do there is to identify who are the key employees in the operation of a business. And then once we've identified those individuals, we have to identify who their successors are going to be. Are there people that are coming up through the ranks in the company, or do we have to go out and recruit people laterally so that we don't have a drop off if an employee leaves or gets hit by a bus, et cetera. But regardless of how business owner is going to exit from his or her business, we want to make sure we have very seamless and tax efficient structures in place for both the exit plan as well as the succession plan.

David Spray
Is succession planning a subset of exit planning, or is exit planning a subset of succession planning, or are they parallel tracks?

Mike Silverman
They're parallel tracks. They're totally distinct from one another, and they're not linked together at all.
It's important you do both. You can't do one without the other, in my view.

David Spray
When you do come across folks who have done some planning, are they usually more focused on the exit planning than the succession planning they are because they.

Mike Silverman
Have their eye on the prize. And so they're most interested in finding out how could they can maximize the value they can attain on their exit. But it's every bit as important to a third party buyer and to you as a business owner that you have in place in the operation of your business a seamless succession plan, because we don't know when that succession plan is going to kick in and it could kick in well in advance of an exit.

David Spray
Okay, thank you for that. Delineation so the next question I think I'm going to direct Matt's Way, do your business owner clients, do they tend to be very proactive on their succession in exit planning or is it something that tends to fall to the bottom of the stack?

Matt Clark
Matt it tends to fall to the bottom of the stack. I mean, these are people who are very busy. They're trying to drive the business forward. And in many cases the last thing they're thinking about is exit planning or succession planning. They're thinking about kind of daily plans. And so you can think about that in our own lives, very few of us have a five year plan that we kind of put out there, much less 1020 kind of thinking, worst case scenario and best case scenario, but you don't know the date of your exit. And so it's really important to develop a plan, one to protect and maximize the value of the business. Everybody, every business owner is going to exit his or her business, whether it's voluntarily or know that great offer comes along and you weren't prepared or mike and I have had, unfortunately, the situation where a business owner had a sudden health issue and they were no longer there. And so now their family is left with the family members no longer there and the business is left without a leader and without a plan. And what that does is it really destroys the value of the business because there's no planning. The employees are left wondering what's going on and they haven't been included within it. So you need to eliminate or at least minimize the risks and liabilities associated with the business. You need to create a clear vision and goal for the owner, for the family, for those key employees that are part of the succession plan as to the direction of the business both before and after the owner's career has ended, whether again, if that's voluntarily or involuntarily. And you really need to make sure that this planning is creating an effective and efficient transition of the business upon the exit. So we'll tie on or tie into this later on. But one of the challenges for a business owner, particularly someone a founder, is they've invested or they view that business as an extension of themselves. And in many ways this actually harms the value of the Business. And that's where the really succession planning and saying, who can help you run this business if you're not here? And how do you move in that direction as part of your exit? It actually Helps once they Understand that and Realize that actually creates value in the business, it Aligns Their goals with the business Goals. And really, it helps increase everybody's value. Employees, the family, the owner.

David Spray
Yeah. So you raise a really good point that without planning, a sudden exit can result in a dramatic reduction in the value of the business.

Matt Clark
Mike and I had a client where we had been pushing to have a plan put in place. And the founder, owner, Healthy, was really driving the business. Hard didn't see a need for it and unfortunately had a heart attack and passed. And so the wife became the business owner, had no real interest in the business, had no experience with it, and there was no succession plan. And so we come in, and we're trying to help lead that through the process, whether it's identifying okay, now, after the fact, you're identifying who is the employee. Is there an employee that can lead this business at least through an exit where you haven't destroyed the value? So those are the sort of things with and we recognize and appreciate that the process itself can be time consuming in that you go through effectively. And we'll get into this due diligence on your own company, identifying where your weaknesses are, how you can approve those. Do you have somebody who can take over the business? If you don't? How do you bring that person in? Or what do you do to decouple yourself as the business owner from the operation of the business so that a buyer can look at it and say, there's real value here without this person being in the business? 24 7365 because That's Part of your exit Plan. You're Looking To actually move away from the day to day operation of The Business once You Sell?

David Spray
No, that makes sense. So I know my clients tend to try to bottom line things. So would It Be inappropriate to Say to somebody who hasn't done Planning to say to Them, well, hey, if you Don't Want to do planning, that's okay. But realize that your ultimate value of the business at the exit is probably going to be half what it could have been or substantially less than it could have been. Is that any?

Matt Clark
That's a fair mean. So mike and represent. We do a lot of exit and succession planning, but we also on acquisitions represent both buyers and sellers. And when a buyer is looking for a business, particularly if it's a financial buyer, they're saying, if I purchase this business, am I going to have to once the owner leaves, am I going to have to put in somebody who's the new CEO, president, whatever it might be? And that's an additional cost. And that person doesn't have the relationships, doesn't have the experience. And so you're now discounting the value because that all left with the owner. Even if there's a transition plan, what we recommend, and this is part of the succession and exit planning is making sure that you have the right people in place, that you can continue to have those relationships. And you can say to a buyer, hey, this is basically running on its own. This is so easy for you. I've set it up. Here's the plan, the succession, this person, when they leave or retire, I have three other people that I've been training and qualified. None of my relationships with my key vendors or customers are tied to one employee. They're not tied just to me. And so it really allows you to say, this is a turnkey business just waiting to generate income for you, just like it's done for me. And that's really of premium value.

David Spray
Okay.

Mike Silverman
The one thing, David, that I would augment, what Matt just said is that a lot of times we have an exit planning structure that we call an exit without an exit. And that means you have to have a perfect succession plan because once we get into the succession planning with a client, we explain to them this business has to run on automatic pilot whether you're there or not, because then a buyer has no issues with regard to your business. They know it can run whether you're on vacation for six months or not. So a lot of our clients, once they realize that when we've gone through a really well conceived succession plan with them and the owner has delegated all the control and the reins of the business to key employees and the owner can go away for six months. The owner says to himself or herself, wow. I can augment my purchase price by just hanging around for a while. So I'm not going to exit. I'm just going to collect coupons and distributions from my company, let these people run it. I'll bump up their salaries a little bit, but I'll just passively collect distributions and cash flow over the years that increase my purchase price when I eventually exit. So that just shows that how important the succession planning is and how important it is that we have a business that's transferable, that it's not dependent on the owner. The owner has delegated all those control elements of the business to key employees.

David Spray
Yeah, I have a general sense of this because I don't know if you know who John Warlow is, the built to sell guy, but I actually went through his program a couple of years to become a certified value builder and it was so eye opening. I mean, the other big takeaway is a business that can run without you is a more fun business to own. So, I mean, when you look at it, there's really no reason to not have a business to not have the goal of having a business that runs without you. It's more valuable, it's more fun. If you have some unexpected change, it's better. Mike, when should a business owner start exiting succession planning? I guess it depends on if you have a crystal ball, right? If you have a crystal ball and you know exactly what the future holds, then you can tell them exactly when to start their planning, I guess. Right.

Mike Silverman
I tell every client, and this is typically new clients because all my existing clients have done their exit and succession planning. That as Matt alluded to before. Every business owner exits from his or her business, either voluntarily or involuntarily. And as you said a minute ago, we don't have a crystal ball and we've had plenty as to whether an involuntary event like death or disability is going to occur. Involuntary events also include key employees leaving the business or key employee dying, et cetera. You can go into a free fall for things that might happen to the business owner or key employee. So I tell every new client, you can push back and delay doing the exit succession planning, but it's critical you do it today. You've spent a better part of your lifetime, significant part of your lifetime, building a very unique and valuable business, the value of which probably represents 80 or 90% of your net worth. And you need to protect that business and also ensure that whether we have an involuntary or voluntary exit, we're getting 100 cents on the dollar. We have a tax efficient exit, we have a succession plan that is seamless, that kicks in, and that all your planning is in place so that whether there's an involuntary event or a buyer comes knocking on the door tomorrow, we're ready for it. So I tell every client, we need to do this right now.

David Spray
Yeah, that makes so, Matt, if I'm hearing you guys correctly, that everybody needs some type of an estate plan, arguably, and those with substantial assets, it's even more critical. But what I think I'm hearing you saying is that a business owner, their exit and succession plan is just as critical as their estate plan.

Matt Clark
Well, I don't want to say it's more important, but they kind of all go together. And so when you're thinking about your estate plan, you have to think about the value of your assets that are part of your estate. And so if you're saying, well, my business, I think this is my exit plan, this is what I'm going to live on, this is kind of all part of the process. You're going to maximize that value by successful and well thought out exit planning and succession planning. And so again, we would say the estate plan is part of that. But before, when you value your estate, you'd say, okay, well, what is the value of my business? So there's also a group of people and advisors that we work with, whether it's your estates and trust lawyer, the accountant, the financial planner, again, the owner and their insurance, they're all tied together for really kind of a holistic approach of exit planning, succession planning and estate planning. And they are tied together. So again, they all have to be working in conjunction and the business owner has to be realistic about all of them, but thoughtful.

David Spray
Yeah. So I'm starting to get it that really, you could kind of say it falls under the umbrella of being financially successful in one's life. In a way, the price of that is the more financially successful one is, the more planning that's required to ensure the maximum capture of value that they've created both on the estate tax side and on the business side. And I guess the difference is somebody who's just a corporate executive, their state plan is really the heart of their issue. They don't really need the exit plan, the succession plan, because they're an employee. Okay, that makes sense. So let's talk a bit about the planning process itself. Let's get into some of the nuts and bolts, if we could, because it sounds like it's really a holistic approach. What are the different components of that planning, Matt, that comes into that? I mean, we've talked about the estate planning, the exit planning, the succession planning. Are those really the three legs of the stool or are there additional planning components beyond that that are subsets of that?

Matt Clark
Those are our key components. I'm going to throw this one over to Mike. I know this is his area on the tax planning and that is his specialty.

Mike Silverman
Yeah, I would say, David, that it's a very holistic effort that we go through a lot of steps. The initial step in the planning process is we want to hear from the business owner what his or her goals are. And those are personal goals, business goals and financial goals. Once we've identified that, then we can structure our planning around those goals to ensure that we achieve those goals through the succession plan and the exit plan.

So our first step once we've identified those goals is as Matt alluded to earlier, we go through a due diligence process with the business. We want to make sure the business is airtight and squeaky clean. So we literally go through with the business owner. The due diligence checklist we use when we represent a company and buying another business, because we want to go through all facets of your business, not just legal issues, but every other issue. Insurance, benefit plans, et cetera. Just everything that you would go through if your business was being acquired. We want you to look at your business from the outside in and think about what areas of your business need protection, what the value drivers are in your business that make your business unique and give you barriers to competition.

What things we need to protect through an employment agreement, for example, that has non compete, non solicitation and confidentiality to getting a trademark on your name and logo, et cetera. We want to make sure we've identified any issues that need to be cleaned up and get you to the point where your business is airtight and squeaky clean.

So a buyer would have the shortest due diligence exercise with your business ever. Once we've gone through that, then we move on to financial planning because we want to accomplish your financial goals. So we want to get a back of the envelope number, first of all from your financial planner as to the liquid net worth that you need to have to retire under the circumstances and terms you want to retire. And so that gives us a reference point. So the second reference point, in light of the fact that a high percentage of your net worth is the value of your business, is we have your accountant do a back of the envelope net proceeds analysis of what you would get if you sold your business today after fees to professionals and investment bankers and after taxes, et cetera. And so once we know what you could net, what you could realize if you sold your business today, we compare that number to the liquid net worth number your financial planner has given us.

There's usually a huge delta between those two numbers and it puts in the bright lights for the client how much they need to increase the value of their company. So that's the first element of planning, really. The second element of planning is really growth planning. We need to work in concert with your professional advisors to develop a growth plan where we can increase the revenues, the profits and the cash flow and the value of your business so that over time we can eliminate that delta that exists between that net proceeds number that you could get today and the liquid net worth number you need.

After we've completed the growth planning. We also put in place a contingency plan because what could interrupt the time frame for completing your growth plan is if there's an intervening event, death or disability. So we typically go about securing an appropriate amount of life insurance and sometimes disability insurance to ensure that we've insured against that contingency. After we've gone through those planning exercises, we're ready to now design the structure of your exit plan. And typically in connection with designing that structure, we're going to go through a lot of different structures with you, but we're going to also make sure what Matt alluded to earlier, we don't have barriers.

Things are going to be in the way to your achieving 100 cents on the dollar right off the bat on the sale of your business. And the biggest one is typically if a high percentage of your customers are coming of your revenue is coming from one customer or your business is dependent on the owner because the owner is responsible for 70% of the revenue with the client relationships. If there's a dependency, if there's a concentration issue, we want to eliminate that. And so the structure we're designing will work seamlessly. And so we go through the different structures for the exit plan and we figure out what's the most tax efficient structure from both an income tax standpoint and then a state and gift tax standpoint. And also simultaneously is achieving all the goals that you have set out for us. And then lastly, we're creating a succession plan. What we talked about earlier for.

David Spray
So thank you for that. But one thing I was thinking about is this concept. You've got the advisors, right, the estate planning attorney, the CPA, the wealth advisor, that who should be the quarterback on that. And I know a lot of wealth advisors end up taking that role because they find that they seem to have more frequent contact with the client. So they end up kind of taking that quarterback and proactive role. But as I listen to you, I wonder if you all should actually be in that quarterback role. And here's why I say that. Because if 80% of the client's net worth is in the business, then that's really what's driving everything, right? That's the biggest asset in the estate plan. That's the biggest asset from the financial planning. So I'm guessing that you don't just do this exit and succession planning, kind of wash your hands of it, give it to them and say, hey, if something changes, call me. Or if you're ready to sell your business, give me a call. Are you all more involved on an ongoing basis than what I might first have imagined? Matt, what are your thoughts there? I asked several questions at once.

Matt Clark
There no I think let me step back. I was going to say after Mike talked about the planning process and the Holistic approach, I think the answer is mean. These are clients that we work with on a regular basis and so we understand their needs and issues and risks. There is a regular check in. The only way these plans are successful is if you're checking in against them to make sure that the client is moving forward correctly or that you have to reevaluate if something comes up. That's all part of it. Maybe their goals have changed, their needs have changed. There has to be a discussion on that. We work and I wouldn't say while we take the lead on that, on the planning, we are working with each of these areas, whether it's these experts, whether it's the accountant, the financial planner, insurance. We want to have a collegial relationship where it's viewed as truly a team that we're all there on behalf of the owner to make sure that their plans and their needs are met. And so you're right. I think if 80% of the value of the company or excuse me, the owner's assets are driven by the company, and we're working with that company day in and day out, whether it's on their commercial agreements, their benefit plans, just general advice and guidance. We're there for our clients. We will help them dealing with their financial planner, the accountant insurance. It's across the board. But we're mindful that it does take a team approach so that the clients needs are met.

Mike Silverman
Okay, David, I would augment that by saying that one thing that falls through the cracks is that a typical business owner has excellent advisors, but excellent advisors. And getting a really well conceived exit plan and succession plan done are two different things, in my experience at least. I think that the advisors, number one, are not proactive with getting the exit and succession planning done. And secondarily, they don't coordinate with each other on this topic. And then lastly, they don't necessarily have the experience. I mean, you need to have done many dozens, if not over 100 exit plans so that you're really well versed in all the particulars of a client's fact situation and you can design the exactly right exit plan. So having a great team of advisors and getting a great exit plan done are two different concepts. So I think it's good to have as your quarterback somebody who's done a lot of exit plans and succession plans in their career.

David Spray
Now that makes sense. And I wasn't thinking about the ongoing commercial aspects of the business that they can reach out to you on contracts and other stuff. So help me understand what would be, from your perspective, a textbook client engagement where you all can really add maximum value. Let's say we have a business that's got a $20 million enterprise value, single shareholder gentleman in his 40s. What would kind of the ideal situation look like? Are you proactively meeting annually, quarterly? And then what other aspects of the commercial legal situation are you guys set up to handle? I'm guessing all the transactional contract type stuff that you all can be a resource, is that correct?

Mike Silverman
Yeah, I'd like Matt to weigh in on it as well. But from my vantage point, once we've designed the exit plan and the succession plan, it takes a long time to implement it. The growth plan takes quite a long time to implement. So we're in contact on a monthly basis, sometimes more frequently than that because we want to stay on the client because these things can drift if you're not in contact with the client, things don't get done necessarily. So we can build the engine, but then we got to fuel it. And so we're in contact with them on the implementation until it's done, and then we're working with them on all the things I talked about before with the due diligence effort, we want to make sure that you're building on once we've done that. So we want to keep you airtight and squeaky clean and help you. To grow.

David Spray
And Matt, what else might you add to that?

Matt Clark
Yeah, I think we become part of the generally, these clients, they don't have in house counsel, and so we become their general counsel for their business. We're there for daily advice and guidance, whatever they need. And it's really all aspects of their business we're able to assist them with and try to give them advice and guidance. Understand now that we have a clear understanding of kind of their vision, their plan, where they want to be, our goal is really to help them to get there in every aspect, whether that's, again, even on the hiring of employees, if they want our advice. I know that Mike and I have sat in on interviews when they're interviewing key employees for their business because that's part of our role, if that owner wants us to be involved in that. So we really become part of the management team and we're tied at the hip with the owner. Our goals are aligned with theirs.

David Spray
Yeah. And you're helping me kind of better understand this because of the due diligence you're doing on the front end, you have a better understanding of their business than if they just say, hey, I need to have a contract drafted, and they ask their golfing buddy, who should I call? They call up the attorney. Like, I need a contract. An attorney. In that isolated basis, it would be much more difficult for them to provide contextual advice right. Without understanding the whole situation. Yeah.

Matt Clark
You don't know if that client is going to be the key client or if it's just kind of a one off or what their risk tolerance is, where they are in the process. Kind of the lifespan of the company. Are they looking to have an exit in two years, five years, ten years? It's just kind of in the abstract. And so, again, we're happy we work with clients in that way, but what we really enjoy is helping them plan for their future success of the company and then helping them drive that success.

David Spray
Yeah, that makes sense. And it sounds like you guys frequently work as a team serving your clients. Could you help me understand the roles you all play in that teamwork? And I guess the other benefit is there's a lot of overlap too. Right. So from the client's perspective, they're also reducing their key attorney risk right. By having two of you that know their situation. So, Matt, when a client asks you, hey, why do I need two of you? Isn't it cheaper for me just to have one of you? How do you answer that question as far as how you guys work together and the expertise you bring?

Matt Clark
Well, first off, I'd say we complement each other. My practice is a corporate general practice and an M and a practice. I did work eleven years in house at a variety of companies, and I've worked with early stage companies all the way up to publicly traded companies. And so I think I have a really good vision of what it looks like for a company to grow the day in, day out needs of a company. I can be the client's in house counsel, but I'm their outside advisor as so, you know, the one thing I'd say is the client is never going to pay for Mike and I at the same time. We have this arrangement where we're both on a call with the client. One of us is not going to bill. They just don't experience that we understand the needs of the client and what I really call value based billing, they understand and have to feel like they're getting value for what we provide. And we think we really do provide value to our clients both short term and really with the planning long term. And that's our goal. We want clients that are going to be, that will be their counsel, not just for the review of one contract, but to help them grow their business and really look back and say, that was really great working with you. Let me give you the name of I'm going to tell one of my friends, my colleagues, somebody I know, they should work with Mike Silverman or Matt Clark. And so that's ultimately and with denton's.

David Spray
And so that's what we look, you know, I thought I've got a pretty good understanding know, the roles that all the advisors play, but you guys kind of just keep throwing me for a loop here, because when I think of an M A advisor, I think of a very transactionally focused advisor, where a substantial portion of the lifetime value of that client comes from that single transaction. And thus, by necessity, it seems like they need to really maximize the value of that client. But what I hear you guys saying is you take a different approach. You take a long term approach to the relationship, and because you're taking that long term approach, you don't have to bill for both of your time every time you're on a call. And so in the long run, if you think about it from like an hourly cost, the client's actually paying less in the long run because so it's like a two way street, right? If the client says, hey, I want you guys to be part of my long term team, in exchange for that kind of long term commitment, you're able to be able to take a long term perspective and not be hyper focused on how much revenue that client delivered this month. Does that sound right, Mike? Yeah.

Mike Silverman
Another example of that, too, is most clients think that a sale to a third party buyer, a strategic buyer, whatever, is nirvana. That's the best possible exit structure for them. And it's a great exit structure for a law firm and an accounting firm and an investment banker because it generates enormous fees for all of those professionals. I can tell you that only a small percentage of the exit plans that Matt and I do involve a third party buyer. Most of them are a different structure where the revenue that is paid to the professional advisors is a fraction of what they'd paid if they did a third party sale. So we do what's best for the client, and there's a parade of horribles that the client isn't aware of until you delineate it for them associated with a third party sale. And we can get you typically 100 cents on the dollar with a different structure, whereas with a third party sale, there's a lot of different results that might be obtained.

David Spray
Yeah, and I want to talk a bit more about that because when I heard you on Lori's podcast a year and a half ago, that really intrigued me. But back to the question as far as what roles you and Matt serve when working together as a team. So it sounds like like it sounds like he has more buy side experience from large Acquisitive companies. Is that accurate? And you've got more of a focus on the tax consequences or help me understand the delineation.

Mike Silverman
Matt is very strong as a corporate lawyer, and he's got a significant buy side and sell side practice on the M A front. I have no M A component to my practice. My practice is strictly general corporate tax and exit succession planning. And so but we complement each other, as Matt mentioned earlier.

David Spray
I see. No, thank you for that clarification. Now that makes even more sense to me. So what I would like to do is I'd like to kind of shift gears and talk about the whole concept of internal sales ESOPs. And again, from your interview with Lori, it just really resonated with me that of all of the benefits of an internal sale and quite frankly, I really rarely hear M A attorneys talking about. So just talk to me a bit more about why do you never hear about internal sales? It's like the thing you always hear is there's a financial buyer or there's a strategic buyer. You always want the strategic because they'll pay a premium. And that's kind of the end of the story. And due diligence is going to be horrible, and the buyer will retrade at the last minute and a lot of a significant portion of the deals never close after months of painful due diligence. But there's a third way. So why don't you talk to us, Mike, about some of the benefits of, I guess what I'd call the third way.

Mike Silverman
Okay, well, as a preface to describing the indirect acquisition or internal transaction, I think that the reason you hear about it so little is that M A lawyers, corporate lawyers, they're driven. I mean, it's almost automatic pilot for them to drive you to a third party sale because that's what they know that's where their experience lies. Their experience lies with working with an investment banker and getting the highest amount and as many cents on the dollar closing as they can and so forth. And unless you're a pretty experienced exit planner, you're not going to be at all familiar with an internal transaction.
And so what I say to every client to dissuade them, to get them to look at an internal transaction is I said, here's the pros and cons of a sale to a third party buyer. If you sell to a third party buyer, the big pro to me is an investment banker is going to find you a strategic buyer that's going to pay you more than the fair market value of your business. So that's a big pro. The cons that I have with a third party sale and as I referred to them before, it's kind of the parade of horribles is number one, you're going to pay large professional fees to a law firm, an accounting firm, and a very big fee to an investment banker. I mean, you're talking high six figures, maybe seven figures in fees for those items. Number two, you're going to have a purchase agreement that has 25 representations and warranties about your business that you have liability for.
And you're going to hit in that agreement an indemnification section that makes you liable for up to 100% of the purchase price. So when you close on the sale of your business, you're not sleeping all that well at night with those two factors at work.

David Spray
And the third one that bothers me a lot is you typically don't get 100 cents on the dollar. There's typically a promissory note or there's contingent purchase price, which we call an earn out that's dependent on the business achieving certain milestones down the road, and someone else is running your business relative to those milestones now. So I don't like any of those dynamics. I want to come up with a structure. I like to implement a structure that eliminates all those things, the fees, the earn out payments, the deferred purchase price, et cetera. So the structure that I use that I refer to as an indirect acquisition is a lot of my business owners are very loyal to their key employees.

David Spray
And what they tell me is, in a perfect world, I'd like to transition this business to the management team, to the key employees who have gotten me to where I am right now. And I want to incent them to facilitate my exit from this company. They don't have the wherewithal to take out a loan, guarantee a loan. They don't have the cash in their pockets to buy me out. So how can we do this? What my structure is, it's three simple steps.

David Spray
I have the business owner exchange his or her shares of stock in the company, which I call a recapitalization for shares, for a small number of voting shares and a large number of non voting shares. So after that step, the shareholder or the business owner might have three voting shares and 997 non voting shares. Step one. Step two is we identify in the succession plan who are the key employees of the business who drive it right now and who we want to incent to drive it in the future, drive the value and the cash flow in the future.

David Spray
And we're going to grant to them a small percentage of the non voting stock in the company, maybe 3-4-5 something like that. And we're going to tie to that a very long vesting schedule so that they won't vest in it for maybe a ten year period. And I tend to use a cliff vesting schedule. So unless and until you've given us ten years of sweat equity, you don't vest in this stock we've granted to you, you own it, but it's subject to forfeiture if you leave in the next ten years.

David Spray
Let me just be clear. So a cliff is opposed to like a pro rada where exactly? If it's a ten year schedule, say they earn 10% because of the cliff, that gives the employer more ultimate power, I guess, over that. Yeah.

David Spray
The two problems I have with the prorata vesting are number one, the key employee could walk out the door after four years and they're 40% vested and that doesn't sync up with the exit schedule for the owner. So that's not helpful to me. I want the timeline for that vesting schedule to sync up so the owner can be fully bought out by the time you're vested. So you're either all in with your sweat equity or you're not. And this is also a tremendous incentive tool with the key employees because the third step is we enter into a shareholder agreement between the business owner and the key employees who got that 3% of the stock. And that agreement says that the business owner has a right, a put right, meaning he or she has the right to require the company to buy a certain percentage of his shares over time. And so as those shares are purchased by the company through the cash flow that these key employees are generating, little by little, the owner's percentage is going down and the key employees are rising from three and 5% to 20% and ultimately to 100%. So the structure, if you think about it, creates a win win environment. It's a huge win for the business owner because that owner stays in control of the company with the voting shares till the bitter end, until all of his or her non voting shares have been purchased by the company. Number two, they don't have any of the cost downside risks associated with a third party sale. They're going to get 100 cents on the dollar and oftentimes the fair market. We have the purchase price equal to a floor value or the then current fair market value. So they may get in excess of 100 cents on the dollar. And the owner also gets to achieve his or her goal of transitioning the business to his management, his or her management team. On the flip side, it's a win for the key employees because they're not paying for the business. The cash flow of the business is buying out the business owner and they gradually, just by contributing their sweat equity, are going from 5% to owning the business in total over time. So the structure creates a huge win for both sides and we eliminate all the prey to horribles I talked about with a third party sale.

David Spray
Yeah. And this is usually what you're describing. Is it usually using an ESOP structure?

David Spray
Sometimes it's an ESOP, sometimes not. I'm a big fan of ESOPs, ESOPs as a tax lawyer, it's the last safe haven I have in the Internal Revenue Code, frankly. And so an ESOP I use in my exit planning quite a bit. My 1st 25 years of practice, I did very few ESOPs the last few years of my practice. I mean, we're working on three ESOPs right now. The acronym just stands for Employee Stock Ownership Plan. And that's a qualified retirement plan. And so we can set up a qualified retirement plan to buy some or all of the shares in a company from the business owner. And there's enormous benefits to doing that. The typical business owner owns a flow through entity for tax purposes, an S corporation or an LLC tax as a partnership. And so if we have an ESOP buying an ownership interest in a flow through entity, let's just say that the ESOP buys 50% of the stock in an S corporation from a business owner. Now, all of a sudden, 50% of the income of that entity is tax exempt. We don't have to pay taxes on.

David Spray
It anymore because the ESOP owns that 50%.

David Spray
Yeah, and the ESOP is a tax exempt qualified plan. And so the ESOP gives us a lot of benefits in the exit planning sphere because number one, the cash flow of the business is going to go up significantly because tax dollars are no longer being paid ever again to the state or federal governments. Number two, the owners of the beneficiaries of that ESOP are the employees of the company. So now, all of a sudden, you've created an incredible incentive compensation tool to retain your current employees and incent them to grow the value of the business as well as a recruitment tool, because you can tell every new employee that comes aboard. You're going to be a beneficiary of this ESOP, and you're going to be an indirect owner of the company. That's why Anderson Window Company, for example, says they're employee owned, they're owned by an ESOP. And so their employees are very proud and very happy to be owners of Anderson Window Company, which is a big valuable company that obviously was owned by a business owner one day, and it got sold to an ESOP. So ESOPs are a big part of our practice as well.

David Spray
Isn't there another benefit to an ESOP that's like, similar to a 1031 exchange?

David Spray
Yeah, there's another code, section 1042, that says if you sell stock in a C corporation to an ESOP, then you can take the proceeds and redeploy them in the stock market, and you don't have to pay tax on those proceeds. You can defer your gain recognition as long as you hold those publicly traded securities in which you've invested the sale proceeds. Once you ultimately sell those publicly traded securities, then you pay your gains, but you could hold those securities for a long time. You could hold them till death and get a basis, step up in them and never pay tax. So 1042 gives you an advantage. If you're a C corporation, you sell stock to an ESOP.

David Spray
So, ma'am, this has been so much fun, and I still have a bunch of questions. We may have to just have a round two, but I always love some success stories. And so help me understand kind of what kind of an ideal client looks like for you all. I'm guessing a half million dollar revenue solopreneur is probably not the right fit. Or maybe the other way to look at it is maybe each of you give an anonymous client sort of success story. And maybe through that we can kind of illustrate what the kind of typical clients like. Matt, why don't you go first? When people say, hey, what's the perfect company for you guys? What are the attributes that you think you can really add a lot of value to a company?

Matt Clark
So I have a client that I helped form the client and again, very early stage in a somewhat niche market and set up the company. Asked him what his kind of went through the exit and succession planning to make sure that as he grew his business and he literally started with four employees and within five years had 30 employees was in a really attractive market. But part of his goal was he wanted to truly exit the business and didn't want to be in it any longer. And he was looking to just truly maximize his value, understanding he might be willing to stay on for six months at the most. And so we went through, we helped him set up his benefit plans. We made sure that his IP was protected. It's really important, both trademark and here. He had some patents he was selling us and internationally. We made sure that he was complying on his export compliance. We made sure since he was selling both at his location in Pennsylvania, but he was also selling outside of Pennsylvania, that his tax regiment, that he wasn't going to be hit with sales and use tax and failure to pay that in all of the jurisdictions in which he was supposed to. And so we look at clients and say, we're going to help you grow your business from two or three employees to an exit that is upper seven figures. I mean, it was a great within a short time period. And then this is somebody who is, to be candid, young enough that once his non compete runs out, he will be back to us. We've set up his estate planning and so he's coming back to us already and saying, what if I want to invest in real estate? What if I want to invest? And so we're coordinating with his financial planner, with his accountant, with his insurance, and we continue to do that post exit. And so it's really a case of the plan worked and then are we continuing to help him plan moving forward, as he says? Although I left that business, we found that entrepreneurs are entrepreneurs and founders are founders and they might take some time off, but they're going to come back. And so, again, that's the long term where Mike and I work with these clients. And it's not just I'll call it transactional one transaction. It's really looking at kind of the long term and working. He has a family. We've set up the family trust for him. And so it's a relationship that I expect that will last for ten to 20 years.

David Spray
That's great. I love examples. Mike, do you have an example, a client success story example, that you could just tell us a bit about the company?

Mike Silverman
Yeah, I can give you, actually two very different ones that I can describe very quickly. Actually. One was an exit plan where I used that very internal transaction that I just spoke about. This was way back in 2007, where basically we put in place the structure I described and the husband and wife who owned the business, they cashed out way back in 2007, maybe at $6 million, by gradually having the company buy their shares. So the management team succeeded back then to the ownership of the company. And fast forward to today. The management team is going to sell the business for, I think, about 23 million. So the business has gone way up in value. That management team didn't pay a nickel. They just contributed their sweat equity all along and stuck with the plan. So it was a good exit for the husband and wife. They were very happy with getting 100 cents on the dollar way back when. And the management team is thrilled to be selling the business today.

David Spray
For four times what they paid for it.

Mike Silverman
Basically, yeah, four times. So they grew. I mean, the number of employees and the revenue and everything just skyrocketed. So that's part of the explanation for the soaring in value. A very different transaction was I got referred to a seller who owned a C corporation, and I represented him in selling his stock. This is back in 2014 to an ESOP, and ESOP was buying all the stock in the company. And I didn't represent the company or the ESOP, so I represented the seller. And the purchase price was not that large. It was only $4 million, I think. And the company took on debt of, I think, 3 million and used cash on the balance sheet to fund the other million. After the transaction was completed, the company came to me and said they'd like me to be their counsel. And so I immediately told them, we got to convert you from a C Corp. To an S Corporation. So you're a flow through entity, and all your income will flow into a tax exempt vehicle. That factor alone has caused the company to I mean, the company is still in place. It's owned by an ESOP, and all the employees are beneficiaries of that ESOP, and the employee ranks have grown quite a bit since 14. But the value of that company today, because the ESOP has to go through an annual valuation, it's like $21 million. So the company has grown fivefold since 2014, and the biggest factor in that is 40% of their cash flow is being retained. It's not going to the tax authorities anymore. So that, to me, is a real success story just by making an S election in that structure.

David Spray
Wow, this has been such a content rich show. Like I said, I may want to have you guys come back in a few months and go into some other things. But with that we're approaching an hour. Why don't I just let you guys kind of each give any parting advice you may have for business owners as it relates to exit and succession planning? And Matt, why don't we let you go first? And Mike, why don't we let you take us down the home stretch?

Matt Clark
I think exit and succession planning is I think there's a saying, the best time to plant a tree was 20 years ago. The second best time is today. And I think exit and succession planning is the same way. The best time was when you first started the business, but the next best time is today. And so to the extent you haven't started, now is the time. It's never going to get easier if you look forward and say, well, give me six months. Give me twelve months. And Mike and I have heard that, and we really encourage our clients today is that six months. You don't know what the future holds, but why don't we put some contingency planning around it and help you build the value of your business and be that kind of crutch for you that you can count on and rely on to execute on that? So we're here for our clients, and ultimately, we're here to make sure that they meet their goals. And the best time to do that is today.

David Spray
And how do they start that process? Just give you a call or send you an email.

Matt Clark
Yeah, it's just reaching out. And then we set up a series of meetings and kind of walk through. It's a time consuming the first item is the diligence. Well, I think, Michael, the first thing is understanding what their needs are, their goals are, and then understanding about the business, if it's an existing business going through and doing diligence on it to make sure that we understand where the issues are and then have a very candid conversation of what they think the issues and risks are to their business. Most business owners know. I mean, they really do understand what the weaknesses are and what they need to do. It's hard sometimes to kind of open up on that.

David Spray
How does that work in terms of the cost? Do you guys do a preliminary phone call at no cost just to kind of get to know one another?

Matt Clark
How do you all absolutely in the beginning for those the initial meeting and call, and there's no expense for that. We don't charge for that. Again, we look at things long term. It's a marathon, it's not a sprint. And so we're not looking to make our fees on those calls. The ultimate is we want to build a long term relationship with the business owner and the company and really build that relationship for 510, 20 years. Whether they sell that business and they look to enter into a new business or their future endeavors, we want to be there with them.

David Spray
Okay, now that sounds good. Mike, what's your parting advice?

Mike Silverman
Well, at the risk of bombarding you with trite expressions, I'm a big fan of the expression yesterday is history, tomorrow is a mystery, and today is a gift. And that's why it's called the present. So there's no time like the present for getting your exit and succession plan done. It's imperative because you don't know what the future holds. And the thing that I noticed about all the exit and succession plans that we do is the business owner starts out by saying, this is something I have to do, just like an estate plan. But as they do it, they really enjoy it. They learn a lot about their business. They're looking at their business from the outside in and they get enthralled and engrossed with it, and they enjoy the process. And when we get the process completed, they have a sense of comfort and they have a sense of accomplishment. So it's something that initially you say, it's something I got to do, but it's actually not a burden. It's something that you should embrace and then enjoy. It's an opportunity, it's not a burden.

David Spray
That's a really good point. Yeah, because you said it well, I don't really have anything more to add. Well, guys, this has really been fun. And this is only the second time I've had two guests at the same time. And the last time. Was a law firm as well. It was two attorneys who had substantial IC disc experience, so well, again, I really appreciate your time. I'll have your contact info in the show notes if anyone wants to reach out to you and any parting words from you guys before we wrap up.

David Spray
What was that, Matt?

Matt Clark
Thanks, David, for having us.

David Spray
Oh, sure. It was my pleasure. There's a lot of great stuff here, so let's go ahead and wrap it up. I'm not sure why my recording is not stopped. Let me just.