February 18, 2020

Business Succession: #2 SEVEN key exit considerations

Business succession can be a daunting proposition. Having worked so hard and for so long to build a successful mining and resources business, key exit considerations will help you transition from your business smoothly, in accordance with your wishes and in a manner that will set you up financially for the rest of your life.

The most common methods for business succession are passing the business on to family, selling to employees or selling to a third party. While your exit choice will depend on your individual circumstances, a number of critical considerations apply to all of them. Here are our SEVEN critical considerations for a smooth and cost-effective business succession.

  1. Start early

The process of business succession is complex. Depending on your exit route, you’ll need to sort through matters relating to finance, premises, suppliers, customers and referrers before you can successfully transfer control of your business to someone else. Business succession should be considered as far in advance of actually exiting your business as possible, simply because careful planning requires time to achieve the best outcomes.

  1. Prepare the business for external sale

Regardless of your chosen exit path, best practice will always be to prepare the business as though you are selling it to a third party that has no prior knowledge of the business. This means undertaking a valuation; cleaning up and properly documenting any legacy issues that only you are aware of; ensuring that all systems and key agreements are written down and easy to understand; and presenting accounts in a form that are readily understood by third-party accountants. Your aim should be to ensure that whoever takes over the business – family member, employee or third-party buyer – should be well placed to continue the operation smoothly.

  1. Consider the structure of the sale

The business structure and whether you transfer the business itself or ownership of the entire underlying structure (such as shares in the Company or control of a relevant trust) will have different – and very significant – risk implications for both you and the transferee. Given the number of potential permutations and combinations, the most appropriate structure for your sale will not always be clear. You will need proper financial planning, accounting and legal advice to ensure that you adopt the best possible structure for your situation.

  1. Consider alternative funding structures

If you aim to transfer the business to family members or employees, they may not have the funds readily available to make the purchase or be in a position to obtain bank finance for the full purchase price. Even with third-party buyers, you may be able to achieve a superior result by providing additional vendor finance or structuring the purchase over time. A wide range of funding options is available including secured vendor finance; issue of different classes of shares; staged buyouts; and more. Where significant risk is involved, it is critical that your arrangement is correctly documented by a legal expert. You will also need professional advice to decide whether a simple sale for cash or an alternative funding structure can deliver a superior result for you or fit better within your plans.

  1. There’s more to selling a business than purchase price

It’s common for a business owner who’s selling their business to become distracted by an attractive initial purchase price. They can fail to properly consider related and critical issues including warranty risk, earn-outs, retentions and restraints of trade. In many instances, a seller may be better off taking a slightly lower price but with drastically reduced warranty risk and little or no earn-out requirements. Effectively, it may be better to take a ‘bird in the hand’ instead of chasing ‘two in the bush’. Agreeing to a high initial purchase price with an earn-out figure that would require the business to have a good year or even outperform its own historical best years could be a disastrous outcome. 

  1. Document the deal properly

Even if you are transferring the business to people you know and trust and who know and trust you, it’s important to properly document the transaction in its entirety and then undertake the transaction in accordance with those documents. When handled by a legal professional, this process provides clarity and protection for all parties, both during the negotiation and drafting the transaction documentation stages.

  1. Work with a specialised team of advisors

Well-performed business succession requires a holistic approach and due consideration of all the relevant issues: financial planning, accounting and business advice, and legal services. This is why we advocate working with a team of advisors who are experienced in mining and resources and accustomed to collaborative advice that’s focused on your best interests. There are significant benefits to be gained from working with your professional team to properly understand your current legal circumstances, tax position and financial and life goals. The most appropriate strategy may then be developed and implemented to achieve a smooth and cost-effective business succession process.

Resources Unearthed recognises and addresses the need for business owners in mining and resources to access coordinated and properly integrated specialised advice. Our collaborating team includes professionals from financial planning, accounting and business advice, law, lending and finance and numerous other disciplines that each contribute to providing coordinated solutions for the often-complex matters that affect business owners in the mining and resources business sectors.

To find out more about how to achieve smooth and cost-effective business succession for your mining and resources business, and to learn about our collaborative approach to achieving the best possible outcomes, please contact Ian Hillhouse or Craig Hong on +61 (0)7 3007 2000 or contact@resourcesunearthed.com.au

 

Resources Unearthed is a solutions hub that provides integrated financial, legal, property and accounting & business advisory services for executives, professionals and business owners in mining and resources. 

No responsibility will be taken by Hillhouse Legal Partners for loss occasioned directly or indirectly to any person acting or refraining from acting wholly or partially upon or as a result of the material in this publication.

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