There are some common 'people-related' risks associated with business purchases, particularly in small to middle-sized businesses that are substantially dependent on an owner or a few senior employees for their success.
Two things can happen if those personnel aren’t retained in the business in an active way:
- the business’ relationships with customers and suppliers may deteriorate; and
- the employees’ know-how and corporate knowledge will be lost.
Protect yourself in final contract – hard versus soft options
As part of the due diligence processes you need to identify the extent to which a business is reliant on individuals and protect against those risks in the final contract terms.
Example 1: How purchasers can use a ‘hard’ provision in the final contract to mitigate this risk.
A business you’re considering buying has very strong earnings, 60–65 employees, and is largely managed by a single director who founded the company 20 years ago. Relationships with key suppliers and customers are still heavily managed by that director.
A ‘hard’ provision in the final contract may require the vendor to agree to enter into a one-, two- or three-year full-time or part-time employment agreement, to stay with the business and share his or her expertise.
An alternative would be to make the sale conditional on some of the senior staff, such as the sales manager or operations manager, signing an employment contract and transferring as part of the sale.
Example 2: How purchasers can include ‘soft’ provisions to protect against ‘people’ risk.
While doing due diligence you find your potential business purchase is not heavily reliant on one individual, but you do want to tap into the corporate knowledge, expertise and relationships of the previous management or owner as a ‘sounding board’. You also want to ensure senior staff aren’t shocked and unsettled by the business having new owners.
In that case, it’s common to have an agreed period post-completion and transfer that might see the manager or owner be on-hand for one, two or three months.
That’s usually on a complementary basis as part of the sale process, however anything outside an initial period may be on a paid consultancy basis.
Start off on the right foot
In both of the above examples, it would definitely be worth arranging a time to meet and greet the senior team, management and supervisory staff in a relaxed and friendly environment, prior to the final deal settlement.
Ideally, work to ensure your relationship with the vendor is a good one so they are positively orientated towards introducing you as the new owner and assisting with the transition.
An ownership transfer can be extremely unsettling for employees, so the feelings and concerns of your new team should be a priority during the sale transaction and transition process – not an after-thought.
Consider restraint of trade
It’s a competitive market and not all vendors are retiring and moving out of the industry.
Both the owners and senior people in the business can leave with a lot of knowledge and expertise that can be useful in a competitive environment, so it’s often wise to consider restraint of trade as part of the terms and conditions of any purchase contract.
Restraint of trade is a mechanism to prevent owners going into direct competition with the business post transfer.
It’s a difficult legal area and, as a purchaser, you’ll need to get some legal advice.
JPAbusiness offers a range of services for business buyers, including:
- Business finder services
- Valuations and market appraisals
- Custom due diligence
- Purchase negotiations support
- Transition and business planning support.
James Price has over 30 years' experience in providing strategic, commercial and financial advice to Australian and international business clients. James' blogs provide business advice for aspiring and current small to mid-sized business owners, operators and managers.