Selling your Business? Why Experienced M&A Counsel Can Make a Difference | Podcast

Private Equity in Motion

Selling a business involves more than finding the right buyer. The experience and guidance of your advisory team can significantly impact deal structure, risk allocation and overall transaction value. In this episode of Weaver: Beyond the Numbers, Private Equity in Motion, Sean Muller is joined by Steve Kesten of BoyarMiller to discuss why experienced M&A legal counsel plays a critical role in a successful business sale. Together, they explore how risk is negotiated and allocated, key considerations in asset versus equity sales and specialized guidance sellers need to navigate lower-middle-market transactions with confidence.

Three questions answered in this episode:

• Why should business owners hire experienced M&A legal counsel when selling a business?
• How is risk allocated between buyers and sellers in an M&A transaction?
• What are the key differences between an asset sale and an equity sale?

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Detailed Description of Selling your Business? Why Experienced M&A Counsel Can Make a Difference

00:00:00
Sean: As we continue our sell-side series, what sellers should be thinking about, I’m honored to have Steve Kesten with BoyarMiller joining me today. Steve, thanks for joining me.

00:00:00
Steve: Yeah. Sure.

00:00:10
Sean: Do you want to give a little bit about BoyarMiller, what they do and everything else in your expertise here?

00:00:14
Steve: Yes. BoyarMiller is a regional firm here in Houston, and we are a smaller firm, but we have a very sophisticated practice in three main verticals. We’ve got a corporate and M&A practice that I am the head of, and then we’ve got a real estate practice and commercial litigation. In the corporate and M&A practice, we’re focused primarily on lower middle market deals, and I think that’s probably what we’re going to be talking about.

00:00:38
Sean: Well, good. The point here is that sellers are getting ready to sell their business.

00:00:43
Sean: They’ve got their attorney that handles their contracts. They’ve got just their normal business. Maybe they’re doing the estate and gift tax planning, et cetera. They’re comfortable with them. They’ve known them forever. Why do I need to go hire a corporate M&A attorney if I’m going to do a deal?

00:00:57
Steve: An M&A deal is a different animal. And practitioners who focus on that know the logistics. They know the market. They know how to negotiate the various aspects of an M&A deal.

00:01:13
Steve: If you have a litigation attorney that doesn’t understand exactly how the negotiations work, so for example, when you’re negotiating an M&A purchase agreement, it’s not about elimination of risk. It’s about allocation of risk between a buyer and a seller. And there’s so many other things about an M&A transaction that, if you don’t do it all the time, you may not know about.

00:01:39
Steve: One of the things that we focus on for sellers is we try to limit their exposure, limit their liability in connection with the allocation of risk. There are certain things that the market says are fair for a seller, as far as exposure is concerned. There are certain caps on liability. There are certain baskets that you have to get to before liability is even part of the deal and sellers have to come out of pocket.

00:02:06
Sean: Sure.

00:02:10
Steve: Those things a solo practitioner, an estate planning attorney, a family lawyer may not know about.

00:02:17
Sean: Now for you doing this day in, day out, you know where the market’s headed, so you know if this is going to be a cap. For me doing tax work, there are normally very little baskets in the tax world. It’s absolute. There’s a dollar of tax, it’s a dollar of tax. Understanding that piece is just bringing your expertise to the table.

00:02:35
Steve: Yeah. And having done this for 30 years —

00:02:38
Sean: You don’t have to age yourself. You’ve been doing it for a while.

00:02:42
Steve: For example, for 30 years, you start to get a feel for those elements of the deal.

00:02:47
Steve: And taxation, for example, is a huge part of an M&A transaction and why we need to work with Weaver, to cover and help us in those particular areas. But if you don’t know the differences between what happens from a taxation perspective, from an asset sale versus an equity sale, you’re going to leave dollars on the table for your client.

00:03:08
Steve: Understanding all that, staying on top of what’s going on in the marketplace, is just not something that I think that a solo practitioner does.

00:03:18
Sean: And one of your partners put it to me last week. He said, ”Would you go to your general practitioner to have heart surgery?”

00:03:25
Steve: I would not. I would not.

00:03:28
Sean: That’s why you’re bringing in an attorney like yourself to go do this.

00:03:31
Steve: Yeah. It is a specialty. It is something where experience really matters.

00:03:39
Sean: Okay.

00:03:40
Steve: And there’s just also an element of psychology, a little bit of handholding, a little bit of educating, particularly for first-time sellers. That is a nuance that I don’t think, you know, like I said, general practitioners or people that don’t do this all the time are going to understand.

00:04:01
Sean: Well, Steve, I appreciate it. Thank you.

00:04:03
Steve: You’re welcome.

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