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Posts Tagged ‘Advisors’

Dixie Yonkers Special To The Business Review

Getting some outside advice can make the difference between going it alone and going under, or making an idea work. For small businesses, this translates into soliciting advice and guidance from a board of directors or advisors. Some are trying it and finding the results more than worth the effort.

Kathleen Godfrey, sole proprietor of Kathleen Godfrey Financial Planning of Colonie, was in business four years when she heard about the idea of assembling an advisory board. She invited five professionals whom she knew and respected from various fields to serve for one year. They would meet once every two months and listen and comment while she presented her marketing plans and financial statements. In turn, Godfrey committed to donating one-quarter of her net profits at the end of the year to a charity of the advisory group’s choosing.

"When you are on your own, it is so easy to procrastinate, to get sidetracked, so your business isn’t growing the way it could be," Godfrey said. "They gave me someone else to be accountable to. I couldn’t risk losing credibility in the eyes of people I really respected."

That accountability did the trick. Godfrey’s bottom line increased 37 percent in the year since the advisory group began. On May 9, she handed a check for $2,500 to the Legal Project, a nonprofit group that assists victims of domestic violence.

"It’s been a wonderful experience," she said. "I get a lot of good ideas from the group. They’ve seen potential problems before they actually became problems or [have] seen things from another angle."

Godfrey has made it easy for the group to help her, said David Rollins, marketing manager for Plug Power Inc. of Latham, a member of the advisory group. "It has served a great purpose for her. Not wanting to waste the group’s time or embarrass herself has been the glue that holds it together," he said.

While it has been difficult to report her progress at times, Godfrey said the group has helped her to view herself more objectively.

"You have to be able to be a critic of your own business," she said.

Rich Bollam, a partner in Bollam Sheedy Torani & Co. LLP CPAs in Colonie, also has seen the value of outside advice. While his firm has not established a standing advisory board, it has on three occasions invited advice. Eight to 10 of the firm’s most valued clients came together for three hours to respond to a prepared agenda. No executives from the firm were present, said Bollam, just the clients and a tape recorder.

"The idea is to get some good clients in a room and get a high-quality information exchange," he said. With no company employees present, the conversation is candid and objective.

Though the investment is nominal, the feedback is very valuable, Bollam said. The firm has found out what it does well and what clients would like it to do in addition. It has gotten leads for potential new clients and direction for future marketing. The client advisory boards have also helped spread the word about the quality services the firm does offer.

Bollam Sheedy’s client advisory boards have met about once every two years, he said. The firm has arranged one meeting for a client’s firm as well, and would like to offer this type of service more.

"To me, with very little effort and a little organization, you can get a lot of low-cost information from folks around town," Bollam said. "Anybody should do it," he said. "It’s almost like, `Should I plan?’ Everybody should plan."

Still another take on the use of outside boards is that of Taconic Farms Inc., breeders of laboratory rats and mice in Germantown. Though the company has recently grown past the small-business category, it has remained a family-run business for the past 49 years. From its earliest, even as a very small company, an outside board of directors was in place. Now, with three brothers collectively running the business and their mother chairing the board, that board continues to provide accountability and expertise.

It has been important not to have those who run the company on the board, said Joseph Phelan, co-owner of Taconic Farms with his brothers Sam and Richard.

The Taconic Farms board consists of six members, some of whom have served for many years. They bring business, legal and financial expertise, as well as technical expertise in veterinary pathology and nutrition, to the company’s decisions, Phelan said. The board meets twice a year, and individual members are called upon between meetings as needed.

Getting the three brothers to agree can be difficult at times, said Phelan, and then there’s the board to answer to. Phelan said his mother, now in her 80s, is just now figuring out that her sons have a pretty good idea of how to run a business.

That family dynamic that Taconic has somehow been able to keep positive is often the weak link, said Stanley Simkins, president of Menands-based Management Advisory Group and director of the Siena College Family Business Institute. Small or family-run businesses often make the mistake of putting inside people on the board. The board then fails to give objective advice.

"The idea behind a board of directors or advisory board is to get accountable, objective expertise, structure and discipline," Simkins said. "But if the implementation is to bring in your buddies, what have you gained?"

Though advisory boards and boards of directors can be a valuable thing to a small business, it matters how they are established and run. In Simkins’ view, it is a rare small company that has done it well.

Simkins’ word to the wise is, "Proceed with caution."

Written by Dave Kauppi

The purpose of a letter of intent is to define the economic terms and conditions that apply to the pending business sale if the due diligence results in no material differences in the condition of the seller’s business. In simple terms, it means that if I go over your books and records in great detail and I verify that everything you had previously presented checks out, I am willing to pay you X dollars for your business under the set of Y terms. Below is a sample Letter of Intent.

Mr. X. X. LastName
Address 1
Address 2
City, ST Zip

PERSONAL & CONFIDENTIAL
Re: Purchase of Assets of ABC Corp.

Dear Mr. LastName:

The purpose of this letter is to set forth the general terms and conditions of the proposed purchase by NEWCO, a corporation ("Buyer") of substantially all of the assets of ABC Corp., an Illinois corporation ("Seller").

1. Purchase and Sale of Assets. At the Closing (as hereinafter defined), Buyer will purchase all of the assets including accounts receivable but not cash on hand and rights of Seller, including all real and personal property, contract rights, patents and intellectual property. All of the assets to be purchased are referred to below as the "Purchased Assets."

2. Liabilities. Buyer will assume no liabilities of Seller except the following ("Assumed Liabilities"):

The obligations of Seller arising under purchase orders from the Seller’s customers in the ordinary course of business, sales orders issued to Seller’s suppliers in the ordinary course of business, leases of personal property.

3. Purchase Price. As consideration for the Purchased Assets, Buyer will assume the Assumed Liabilities and will pay to Seller the amount equal to the following: ___________________ ($__________) dollars (the "Purchase Price").

Payment is to be made as follows: $ ___________in cash at the Closing, and the remainder by delivery of the Buyer’s promissory note in the principal amount of __________

The _______-year _____________ interest bearing note at the Prime Rate on the date of Closing will be issued by BUYER with interest paid quarterly and principal paid as a balloon payment at the end of the seven year term.

Employment Contract. Buyer and Seller will enter into an employment agreement which will provide for employment as Consultant and provide Seller with an annual salary of ___________ and such other normal fringe benefits as shall be mutually agreed upon and set forth in the employment agreement. In addition to the base annual salary, Seller will receive ___% commission on sales in excess of $ ______________ . The employment agreement will be for a three-year term. Basis of commissions shall be mutually agreed upon.

Recognizing that Mr. Last Name is a valuable resource to the well being of the ongoing business of SELLER, BUYER expects his daily cooperation as part of the total purchase price for at least the first six months after the closing. The employment agreement will require a minimum of _____ days and a maximum of _____ days per year.

4. Conditions. The purchase and sale of the Purchased Assets contemplated by this letter of intent will be subject to terms and conditions customary to transactions of the type, including, without limitation, the following:

No change occurring prior to the Closing which materially and adversely affects the Business, Purchased Assets, financial condition, and prospects of Seller; Completion of Buyer’s examination of the financial condition, properties and business of Seller which examination shall not have revealed the existence of any fact, matter or circumstance which in Buyer’s judgment could materially and adversely affect the Business;
Buyer obtaining financing for the purchase of Purchased Assets at terms which are acceptable to the buyer; and
Both parties agree to a Definitive Purchase Agreement.

5. Complete Access. Following the acceptance of the letter of intent by the Seller until the Closing, Seller will give to Buyer and its representatives complete access to all of its books, records, financial statements and other documents and materials relating to the Business and to Seller’s customers and suppliers.

6. Confidentiality. The information furnished by Seller to Buyer and its employees, advisors and consultants pursuant to Section 6 shall be subject to the provisions of the confidentiality agreement. Until the Closing, Buyer will at all times hold and cause its employees, advisors, and consultants to hold in strict confidence all confidential documents and information concerning Seller which have been or will be furnished by Seller to Buyer or its employees, advisors and consultants in connection with the transactions contemplated by this letter of intent.

If the transactions contemplated by this letter of intent are not consummated, regardless of the reason therefor, such as confidence will be maintained by Buyer, except to the extent such information (a) was previously known to Buyer prior to disclosure by Seller, (b) is in the public domain through no fault of Buyer, (c) is acquired by Buyer from a third party not known by Buyer to be under an obligation of confidence to Seller, or (d) is required by law or legal process to be disclosed.

Such documents and information will not be used to the detriment of Seller or otherwise in any other manner and all documents, materials and other written information provided by Seller to Buyer, including all copies and extracts thereof, will be returned to Seller immediately upon its written request.

7. Expenses. Buyer and Seller will be responsible for the payment of their respective expenses and professional fees incurring in connection with the negotiation an consummation of the transactions contemplated by this letter of intent, except as may be otherwise provided in the Purchase Agreement (as defined below).

8. No Other Negotiations; Brokers. Seller acknowledges that Buyer has incurred and will incur significant costs in reviewing and analyzing Seller’s business and proceeding in good faith to purchase the Purchased Assets as described herein.

Therefore, for a period of ___________ (___) days commencing on the date of Seller’s acceptance of this letter of intent unless Buyer notifies Seller in writing that negotiations in respect to the transactions contemplated hereby have terminated, neither Seller nor it shareholders will directly or indirectly solicit or make or entertain any offer or proposal from or to a third party regarding the sale or possible sale of Purchased Assets or a sale of the stock of Seller or discuss in any manner any such sale with any third party or provide any information concerning the Purchased Assets to any third party.

In the event that Seller or any shareholder receives any inquiry from a third party with respect to such a sale or possible sale, Seller will notify Buyer and inform such a party of Seller’s obligations under Section 8. It is understood that XYZ Merger Group, Inc. has acted as broker on behalf of Buyer and that Buyer shall be responsible for the payment of any and all fees and expenses due to such a firm.

9. Closing. It is anticipated that the closing of the transactions contemplated by this letter of intent (the "Closing") will occur _____________ (__) days following the date of execution of the Purchase Agreement, but in no event later than ______________________________.

10. Public Announcement. The parties will make a joint public announcement transactions described herein, with the content and timing of such an announcement to be mutually agreed upon by parties. Each party will consult with the other party prior to issuing any press release or otherwise making any public statement with respect to the transactions contemplated by this letter of intent and will not issue any such r
elease or make any such statement over the reasonable objection of the other party, except as required by law.

The parties will proceed diligently to negotiate in good faith towards the preparation and execution of a definitive agreement (the "Purchase Agreement") containing the agreed-upon terms and conditions as well as the customary warranties, representations, covenants, and indemnifications normally associated with the purchase and sale of assets. It is understood that except for the provisions of Sections 6, 7, 8 and 10, this letter of intent is not legally binding on either Buyer or Seller, but that it is intended only to evidence the good faith intent of the Buyer and Seller to proceed toward the transactions contemplated hereby, subject to the negotiation of certain terms and conditions not dealt with herein.

If the terms set forth in this letter meet with your approval, please indicate your acceptance by signing both copies of this letter and returning one to the undersigned. Upon the return of an executed copy of this letter, we will instruct our attorneys to proceed with the preparation of the Purchase Agreement and related documents. Our offer to enter into this letter of intent will remain open until the close of business on _________________.

Very truly yours,
__________________________

Agreed to and accepted on this ____ day of _____________, 20____.

By:___________________________

Its___________________________

The Letter of Intent is non-binding so that if the buyer discovers some surprises, he can walk away with no penalty or he can attempt to renegotiate the previously stated terms and conditions. The seller should do his negotiating or have his advisor do the negotiating prior to counter signing the LOI because a smart buyer will try to lock you up for a period of 45 to 90 days while he performs his due diligence. This lock up means that you are not allowed to invite any other bidders into the mix until the period expires or until either party has canceled the LOI. Once the due diligence is completed, then the deal is memorialized by a much more detailed definitive purchase agreement.

Dave Kauppi is the editor of The Exit Strategist Newsletter, a Merger and Acquisition Advisor and President of MidMarket Capital, representing owners in the sale of privately held businesses. They provide Wall Street style investment banking services to lower mid market companies at a size appropriate fee structure.

Written by John Kreitler

Virtually every business can benefit from the wisdom, perspective, and contacts of an experienced group of outside advisors. Larger, public corporations fill this need by having a diversified Board of Directors. Smaller businesses can gain the same advantage by creating Advisory Boards to augment their formal Board of Directors. An Advisory Board can provide many of the advantages of a good Board of Directors, but without some of the risks to the individuals asked to serve.Advisory Board members can bring independent perspectives, experience, special skills, and connections to a company.

This can increase a company’s leverage and credibility in its industry and in the financial markets, and enhance its ability to plan, implement and evaluate its strategic direction and operating effectiveness. Advisory Boards can bring to a company the diverse talents of people who might not want to serve on a Board of Directors. A key distinction between a Board of Directors and an Advisory Board is that the Board of Directors is responsible for directing the affairs of the business, while an Advisory Board only makes non-binding recommendations. A Board of Directors is held to a higher standard of ‘fiduciary’ responsibility than a Board of Advisors. The Advisory Board members have neither the legal obligation nor authority to run the business. This makes it easier and less costly to recruit valuable and experienced people who are focused on helping the business succeed.

Here’s how he suggests that a small business use an Advisory Board to give them a competitive advantage:

  • Strategic Planning – An Advisory Board can help facilitate a strategic planning process, serve as a sounding board or discussion stimulator, and add to the range and quality of the ideas considered and recommendations reached.
    Advice/Policy Forum — Because of the experience of members of the Advisory Boards, they can improve a company’s decision-making on operational matters such as difficult customer or distributor decisions, product development, marketing and pricing questions, and personnel and compensation issues.
  • Evaluation – An Advisory Board can be an excellent, objective, and non-threatening evaluator of management performance, business process implementation, and/or product and marketing strategy.
  • Influence – The reputation and contacts of individual Advisory Board members can add significantly to the credibility, reach and clout of the business with sources of financing, potential strategic partners, and
    prospective customers/distributors.
  • Leverage – Knowledgeable and experienced Advisory Board members can extend the range of management skills in areas key to next-stage growth, and fill gaps in industry savvy, especially for companies who cannot yet afford to
    hire all the talent they need for future growth.
  • Transitions – Members of an Advisory Board could be selected to help during periods of transition (ownership and/or management). They can be an important resource for planning, communications, reducing and resolving
    conflicts, and providing a sense of continuity.

How does a small business create an Advisory Board?

  1. They start by determining the Advisory Board’s mission and the role it will play. Next, the company needs to determine the best structure to implement the mission. This includes deciding on the size of the board, the types of members, frequency of meetings, method of appointing and removing members,and member compensation. "It is advisable to document the Advisory Board’s mission and structure and to have these documents approved by resolution of the company’s Board of Directors.
  2. Then there is the matter of compensation for members. I suggest that there be a per-meeting stipend, with reimbursement of reasonable travel and living expenses. Advisory Board members can also be offered stock options (non-qualified only) or minimal fringe benefits as a form of payment.
  3. Next are some policy decisions. "Most companies wisely insist that each Advisory Board member enter into a non-disclosure agreement to protect the company’s confidential information. Some also have a formal conflict of interest policy to prevent members from having competitive interests or participating in competitive enterprises. The
    company should also consider whether it wishes to indemnify Advisory Board members from suits related to their service in the same manner as directors and officers are indemnified.
  4. In the next step, companies need to determine the initial composition of the Advisory Board. Pick involved, knowledgeable, experienced and committed people. Don’t use Advisory Boards as a place for "honorary" appointments. When looking at the make-up of the Advisory Board, companies should look at qualifications and special skills, commitment to the business, and industry and financial connections. In some transition situations, members also might be chosen to represent different constituencies of the business.
    I suggests getting recommendations for potential members from management contacts, the company’s professional advisors and bankers, industry sources, and even from professional recruitment firms.
  5. Finally, the company must establish and foster a good working relationship between the members of the Advisory Board and the management. They should provide members with well thought-out meeting agendas and deliver well-orchestrated meetings.

A key to this is to provide sufficient and timely information to Advisory Board members. Companies should keep meeting minutes and document specific recommendations. Management should honestly seek the Advisory Board’s counsel on matters within its chartered role, and be willing to communicate management’s views with respect to the advice and recommendations obtained from the Advisory Board.

A Board of Advisors can be a powerful asset in a changing business environment, provided there is a clear mission, the Advisory Board has the right composition of member to meet its goals and are supported properly by the company. They allow smaller companies to compete with larger institutions by bringing in talent that might not otherwise be available to such companies.