If a company’s owners are negotiating a sale of their
business, one facet of compensation the buyer may propose is an earnout, i.e.,
a contingent payment tied to a benchmark for the company’s performance
post-sale.

An earnout is generally a tool of compromise between buyer
and seller – if the parties cannot agree on a purchase price, using an earnout
is a way to protect the buyer on the downside if the company does not perform
as well as anticipated post-closing, while providing an upside in earnings for
the seller if the agreed benchmark is met. The range of calculations for arriving
at an earnout is infinite, but in general, the earnout will be some multiple of
a financial metric or a fixed or variable number based on some measure of company
performance. A seller, if confident about the company’s future, may view an
earnout as a way to realize more money on the sale of the business than
settling for a fixed number that is lower than what seller is willing to accept.

With all that being said, there is always a degree of
risk involved in agreeing to contingent compensation which may or may not be
realized, so most sellers are not inclined to agree to an earnout that will comprise
too substantial a portion of the overall purchase price (with exceptions, as with
all things). Another potential drawback to using an earnout is that it can result
in less favorable tax treatment. If the transaction documents provide that the entirety
of the earnout constitutes ordinary income to the seller receiving the payment,
then seller will be taxed at an ordinary income tax rate, rather than at the
preferred capital gains rate that could otherwise be available to seller.

In light of this, it is important for a selling owner
of a company to consider structuring the earnout so that the preferred capital gains
rate can be attained on as much of the post-closing proceeds as is allowable
under applicable law. A common method by which a buyer and seller do so is by
agreeing on a separate payment that will constitute reasonable compensation to
the individual for his or her post-closing services, and will thus be taxed at
an ordinary income rate. Then the earnout monies that are separate from such reasonable
compensation amount will be categorized in the deal documents as “deferred
purchase price” being paid for the company’s equity or assets, and thus will be
taxed at the same rate for the initial payment at closing. Taxation for a sale
of equity will be at the capital gains rate, and for a sale of assets, as the
facts allow and when structured correctly, the capital gains rate will
predominate as well. Thus, the selling party will attain a preferred tax rate
on the post-closing compensation that is separate from the set ordinary income.

As with most facets of a large-scale M&A
transaction, the legal considerations in structuring the earnout terms
correctly are far too varied and involved to cover in depth here, but there is
great benefit in knowing beforehand that the structure of the earnout can result
in vastly different tax treatment, and that advance planning and utilizing proper
terms can help a seller achieve a much better position with regard to after-tax
proceeds on a sale.

Jeffrey Petersen

This post is for informational purposes
only and does not constitute legal advice.