Business sold, buyer now questioning deferred payment.
Discussion
I sold my car tuning company in early December, the deal was based on a Net Asset Value (NAV) of "X" which included approx £60k of development costs. We are now at the stage of sorting the final deferred payment based on the final accounts being drawn up and these have been sent to the buyers accountant. He now wants to zero the development costs for no reason other than to reduce the final deferred payment the buyer is due to. pay me.
The development costs are made up of work carried out over several years to develop new tuning products, tooling for exhausts, pipes, carbon parts etc to be made all of which are currently relevant. These were not questioned at all when they were given the figures in the middle of last year which were used to make up the NAV and they were happy to make their offer based on the NAV generated.
Are they entitled to question these costs now when they should have at least requested more information and questioned them before making their offer in the middle of last year?
amongst other things they are even trying to claim back staff Christmas bonuses from me that they decided to give out without any consultation with myself, and historically these have always been discretionary and not within any type of contract.
I have bent over backwards to make sure the business was attainable and in great order when they took over so this has come as a bit of kick in the teeth!
Any feedback would be most welcome.
The development costs are made up of work carried out over several years to develop new tuning products, tooling for exhausts, pipes, carbon parts etc to be made all of which are currently relevant. These were not questioned at all when they were given the figures in the middle of last year which were used to make up the NAV and they were happy to make their offer based on the NAV generated.
Are they entitled to question these costs now when they should have at least requested more information and questioned them before making their offer in the middle of last year?
amongst other things they are even trying to claim back staff Christmas bonuses from me that they decided to give out without any consultation with myself, and historically these have always been discretionary and not within any type of contract.
I have bent over backwards to make sure the business was attainable and in great order when they took over so this has come as a bit of kick in the teeth!
Any feedback would be most welcome.
What should I be looking for in the sale agreement? A notice stating figures making up the NAV can be cancelled/questioned after the sale? Figures used to generate the initial NAV can be adjusted at a later date?
Or something the other way round stating that the buyer has the right to change the figures initially used to make up the NAV?
Sorry for the vague questions but I cannot see anything in the sale agreement that related to being able to cancel any figures used to make up the NAV in which the offer was made.
Or something the other way round stating that the buyer has the right to change the figures initially used to make up the NAV?
Sorry for the vague questions but I cannot see anything in the sale agreement that related to being able to cancel any figures used to make up the NAV in which the offer was made.
Essentially, you need to check whether the NAV was agreed and couldn’t be reopened as at the date of sale or whether it was subject to valuation after sale, in which case how was that valuation to be carried out and by whom?
It shouldn’t be up to the buyer to simply challenge it unless the agreement permits this, in which case the grounds for any challenge should be clearly set out.
What was your understanding of the deal that was done with the buyer at the time?
It shouldn’t be up to the buyer to simply challenge it unless the agreement permits this, in which case the grounds for any challenge should be clearly set out.
What was your understanding of the deal that was done with the buyer at the time?
Thank you so much for your replies.
My understanding with the buyer was that the NAV was agreed back in August and that once the revised NAV was calculated as part of the final accounts then I would be paid any amount over the original agreed NAV. At no point was any agreement made to say that the buyers could go back and question/seek to adjust the original NAV figures.
My understanding with the buyer was that the NAV was agreed back in August and that once the revised NAV was calculated as part of the final accounts then I would be paid any amount over the original agreed NAV. At no point was any agreement made to say that the buyers could go back and question/seek to adjust the original NAV figures.
Skyway said:
What should I be looking for in the sale agreement? A notice stating figures making up the NAV can be cancelled/questioned after the sale? Figures used to generate the initial NAV can be adjusted at a later date?
Or something the other way round stating that the buyer has the right to change the figures initially used to make up the NAV?
Sorry for the vague questions but I cannot see anything in the sale agreement that related to being able to cancel any figures used to make up the NAV in which the offer was made.
It's probably more relevant if there is anything in the sale agreement that STOPS them being able to change the balance sheet as they see fit.Or something the other way round stating that the buyer has the right to change the figures initially used to make up the NAV?
Sorry for the vague questions but I cannot see anything in the sale agreement that related to being able to cancel any figures used to make up the NAV in which the offer was made.
In any earn out agreement I've done the calculation sits alongside the accounts and doesn't rely entirely on them.
OP you need to be consulting whoever drafted/reviewed the sale agreement for you and get them to fire a letter off. Entering into discussions/conversations is not something you should do IMHO. In cricketing parlance a “straight bat” is required.
Re bonuses whatever they may feel to be right e.g. accrual is their business. They will have reviewed cash in the bank and accounting practices when they bought the company. If they didn’t or they missed it that is their issue.
You have a legal document which you expect to be honoured. End of.
Your only issue will be legal fees but given a what you have said it should be straightforward.
I’d give them 30 days to pay and if not go to court,,,,then you’ll get your costs.
Re bonuses whatever they may feel to be right e.g. accrual is their business. They will have reviewed cash in the bank and accounting practices when they bought the company. If they didn’t or they missed it that is their issue.
You have a legal document which you expect to be honoured. End of.
Your only issue will be legal fees but given a what you have said it should be straightforward.
I’d give them 30 days to pay and if not go to court,,,,then you’ll get your costs.
Cheib said:
OP you need to be consulting whoever drafted/reviewed the sale agreement for you and get them to fire a letter off. Entering into discussions/conversations is not something you should do IMHO. In cricketing parlance a “straight bat” is required.
Re bonuses whatever they may feel to be right e.g. accrual is their business. They will have reviewed cash in the bank and accounting practices when they bought the company. If they didn’t or they missed it that is their issue.
You have a legal document which you expect to be honoured. End of.
Your only issue will be legal fees but given a what you have said it should be straightforward.
I’d give them 30 days to pay and if not go to court,,,,then you’ll get your costs.
I wouldn't be that confident - if the agreement allows the directors to sign off the accounts and the accounts are prepared properly and are the base used to calculate the earnout then I can't see what he can do about it.Re bonuses whatever they may feel to be right e.g. accrual is their business. They will have reviewed cash in the bank and accounting practices when they bought the company. If they didn’t or they missed it that is their issue.
You have a legal document which you expect to be honoured. End of.
Your only issue will be legal fees but given a what you have said it should be straightforward.
I’d give them 30 days to pay and if not go to court,,,,then you’ll get your costs.
I despise deferred consideration for exactly these reasons. I am advising a company at the moment and they're keen to go with a higher offer with a not insignificant deferred element as the total value is more. I have told them to only consider this if they're happy with the initial payment - and to make sure the SPA is as tight as possible (not necessarily complex - sometimes the simplest gives less opportunity to chase a loophole). I fear this is falling on deaf ears though as they keep seeing the £££.
Unfortunately, from what you seem to be saying, the acquirer has spent some time and effort looking for gaps in the SPA to exploit and you will need to create a robust challenge, including info from HoTs and any other correspondence you have indicating what as being considered (but the SPA is the main doc).
Unfortunately, from what you seem to be saying, the acquirer has spent some time and effort looking for gaps in the SPA to exploit and you will need to create a robust challenge, including info from HoTs and any other correspondence you have indicating what as being considered (but the SPA is the main doc).
JeffreyD said:
Cheib said:
OP you need to be consulting whoever drafted/reviewed the sale agreement for you and get them to fire a letter off. Entering into discussions/conversations is not something you should do IMHO. In cricketing parlance a “straight bat” is required.
Re bonuses whatever they may feel to be right e.g. accrual is their business. They will have reviewed cash in the bank and accounting practices when they bought the company. If they didn’t or they missed it that is their issue.
You have a legal document which you expect to be honoured. End of.
Your only issue will be legal fees but given a what you have said it should be straightforward.
I’d give them 30 days to pay and if not go to court,,,,then you’ll get your costs.
I wouldn't be that confident - if the agreement allows the directors to sign off the accounts and the accounts are prepared properly and are the base used to calculate the earnout then I can't see what he can do about it.Re bonuses whatever they may feel to be right e.g. accrual is their business. They will have reviewed cash in the bank and accounting practices when they bought the company. If they didn’t or they missed it that is their issue.
You have a legal document which you expect to be honoured. End of.
Your only issue will be legal fees but given a what you have said it should be straightforward.
I’d give them 30 days to pay and if not go to court,,,,then you’ll get your costs.
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