October 2019
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Successful Executive Retention Agreements Elements and Common Bonus Structures
When a corporate buyer acquires another company, they usually want to retain the founder or CEO of the seller. The buyer enters into an executive retention agreement with the founder or CEO, and the retained executive commits to be available for a certain amount of time each month, typically between 5–10 hours. These hours are often spent ensuring the transition isn’t affecting the quality of service for the clients — attending lunches with key clients, for example. These lunches are also great opportunities for the retained executive to introduce the client to the new CEO. Often, the former CEO or retained executive will stay on to build a bridge between the old and new guard of the company and assist key clients with potential problems regarding the new regime.
Sometimes the buyer wishes to incentivize the seller’s cooperation, not only with a monthly payment but also with an ownership interest, either through stock options or a stock grant. The seller naturally becomes keenly interested in the success of the buyer. The maintenance of client relationships benefits both the buyer and the seller of a company. This is particularly so if the selling price includes an earnout provision. The buyer is buying a revenue stream, and the greater the revenue, the greater the price. If sales are less than they were projected during the negotiations of the deal, the earnout will be considerably less than if sales exceeded the projection.
or founder wants to stay involved during the earnout period, which can take several years.
In such a case, the CEO or founder enters into a more traditional executive compensation agreement, which specifies salary, bonus, stock options or restricted stock, and, if the executive is involuntarily separated from the company, severance payments. “The maintenance of client relationships benefits both the buyer and the seller of a company.” When a buyer is looking to acquire a business in the same industry, they are probably looking for market share and an increase in revenue. In this case, the seller is going to have more negotiating power with the buyer. During buying negotiations, however, steps are taken to ensure key employees have the incentive to stay onboard, which we will talk about in our next newsletter!
In many situations where the earnout is a substantial portion of the sales price, the CEO
-Guy Mailly
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PRESIDENT ADAMS’ JOURNEY TO THE CENTER OF THE EARTH Ambassador to the Mole People
Today, some of the most fantastic discoveries are being made in the far reaches of space, but there was a time when people were more interested in what was going on beneath their feet. In the early 1820s, a United States army officer named John Cleves Symmes Jr. traveled the country teaching audiences about the Hollow Earth Theory. Symmes and some others at the time believed the Earth was made up of several solid spheres, one inside of another. They also believed each of these subterranean worlds was habitable and full of life. This is
the national observatory, and secured funding for the Smithsonian Institution. It’s possible Adams’ interest in Symmes’ trip to the North Pole was less about the Hollow Earth Theory and meeting the mole people than his larger interest in learning more about such a remote part of the world. However, Adams’ reputation as a naturalist didn’t protect him from scrutiny.
Even in the early 1800s, the Hollow Earth Theory was like the Flat Earth Theory today; there were a couple avid supporters, but most people
where the myth of the mole people originated. Symmes wanted to lead an expedition to the North Pole, where he believed he would find an entrance to the center of the Earth. He went to Congress and lobbied for money to fund his expedition. Congress shot him down, but Symmes found an ally in an unlikely place: President John Quincy Adams. John Quincy Adams was the sixth president of the United States and son of the second president and founding father, John Adams. He traveled the world with his father, graduated from Harvard with honors, helped create
knew it was ridiculous. Having a sitting U.S. president greenlight the expedition was shocking. However, you didn’t learn about Symmes’ expedition in your history class for a reason. Adams wasn’t a popular president, and not just because he might have wanted to meet the mole people. He only served one term. By the time the expedition started to get off the ground, Andrew Jackson had been elected, and he quickly killed the project. In 1936, Congress would approve funding for an expedition to the South Pole, though this expedition focused on exploring the surface of the Earth, not what is underneath it.
Halloween Decorations or Fighting Words? A GRAVE LEGAL MATTER
We’ve all played a harmless trick or two, but sometimes, Halloween shenanigans get out of hand. They can lead to hurt feelings, outraged neighbors, and, in the case of Purtell v. Mason, a lawsuit. In the days leading up to Halloween, all was not quiet in the village of Bloomingdale. Previously parked in a storage unit, Jeff and Vicki Purtell’s 38-foot RV was now parked in front of their house. In protest, neighbors petitioned to town officials, wanting an ordinance put in place to prohibit RV parking on residential property. While the ordinance was under consideration, Jeff Purtell took matters into his own hands. He erected six wooden tombstones in his front yard. They seemed to be innocuous Halloween decorations, but these
tombstones displayed a special message for the neighbors. Each headstone was inscribed with a sarcastic message and house number, implying the occupants’ death dates. These messages soon caught the neighbors’ attention.
“Bette wasn’t ready, but here she lies, ever since that night she died. Twelve feet deep in this trench, still wasn’t deep enough for that stench! 1690.”
Insulted and a little afraid, Purtell’s neighbors called the police to have the headstones removed. After a couple of visits, Officer Bruce Mason arrived and threatened to arrest Purtell if he didn’t take the tombstones down. Purtell obliged, but the matter wasn’t put to rest. The Verdict Purtell sued Officer Mason on the grounds of violating his rights to free speech, and the case made it all the way to the 7th U.S. Circuit Court of Appeals. Judge Sykes ruled that the tombstones did not constitute fighting words and were protected under the First Amendment. However, she also ruled that Officer Mason was entitled to qualified immunity, as any reasonable officer would act the same under the circumstances. The bigger question might be how this case made it all the way to the U.S. Court of Appeals. As Judge Sykes wrote in her opinion, “Lawsuits like this one cast the legal profession in a bad light and contribute to the impression that Americans are an overlawyered and excessively litigious people.”
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TAKE A BREAK
TAILS FROM THE PAST Mythical Cats of the World
Most owners will tell you their cats act like ancient deities. Majestic, scrupulous, and utterly unpredictable, these fascinating creatures have long captured our imaginations. Even before cat videos took the internet by storm, humans have been idolizing felines, placing them alongside some of their most important mythological figures. Bastet — Egypt Of course, a list of mythical cats has to start with Egypt. While many people know the pharaohs and their followers thought cats were sacred, you may be surprised by how deep the connection goes. The earliest depiction of Bastet, the feline deity of protection, is a lion-headed woman in battle. But, over the course of 2,000 years, Bastet evolved to resemble the domesticated, pointy-eared cats we know and love today. 招き猫 (Maneki-Neko) — Japan Legend has it that in the 17th century, a monk living in a small temple in Edo (now Tokyo) was struggling to survive, but he still split his meals with his cat, Tama. One day, Lord Nakaota Ii got caught in a rainstorm while hunting and took shelter under a tree near the temple. Nakaota spotted Tama near the temple, and the cat raised its leg, beckoning the noble to come toward him. Curious, Nakaota complied, stepping out from beneath the tree just before a bolt of lightning struck it down. The lord’s life was saved, and to this day, the Maneki-Neko (the beckoning cat) is a symbol of wealth and good fortune. Freya’s Skogkatts — Norway In Norse folklore, the goddess Freya had a unique means of travel: a chariot pulled by two cats. These were skogkatts, or Norwegian Forest cats, that were only a little larger than your average house cat. Still, these small felines towed Freya around battlefields as she gathered warriors to send to Valhalla. On top of being the goddess of war, love affairs, and magic, Freya may well have been Midgard’s first cat lady.
LEFTOVER CANDY SNACK MIX
Inspired by Food &Wine Magazine
Ingredients
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2 cups mini pretzels, coarsely broken
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6 tbsp unsalted butter, melted
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12 oz mini candy bars, such as Snickers, chopped into 1/2-inch pieces
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1/4 cup light brown sugar
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2 tbsp granulated sugar
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1/3 cup dry milk powder
Directions
1. Heat oven to 275 F. 2. In a large mixing bowl, fold together pretzels, sugars, milk powder, and butter. 3. Spread mixture on a baking sheet lined with parchment paper and bake for 20 minutes. 4. Let cool for at least 30 minutes and mix in candy bar pieces before serving.
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INSIDE THIS ISSUE
1
Successful Executive Retention Agreements
Weird History: The President and the Hollow Earth Grave Matters of the Law
2
Leftover Candy Snack Mix Amazing Cat Tales
3
4
3 Strategies for Helping Grandkids Pay for College
DON’T LET MONEY GET IN THE WAY Of Your Grandchild’s Education
Pay their tuition. Not everybody has $20,000 just lying around, but if you do, using it to pay for your grandchild’s tuition isn’t a bad way to spend it. Normally, annual financial gifts that are exempt from the federal gift tax can’t exceed $15,000, but payments toward someone’s tuition, for any amount, are not taxed. Keep in mind, however, that the money can only
College expenses aren’t what they used to be. What used to be affordable to any student with a part-time summer job now can take years to pay off. If your grandkids want to go to college, the cost of education should not be a barrier to their future. Luckily there are ways that you can help ease that financial burden.
Invest in a 529 Plan. There are no limits on age, income, or monetary contributions attached to this college savings account, and contributions are tax-deductible in some states. Just like a Roth IRA, the earnings grow over time and can be used tax-free for qualifying expenses, like tuition and room . There are a few downsides, however. Funds from a grandparent’s 529 Savings Plan are considered student income and could hurt your student’s eligibility for financial aid. If you choose to fund through a parent’s 529 Plan, which doesn’t count as student income, you lose control over the funds you contribute.
go toward tuition, not toward other college expenses like room and board or textbooks.
Help them find opportunities to save. Even if you don’t have thousands of dollars to give, you can still help your grandkids look for other opportunities to save. There are thousands of available scholarships, grants, and programs to help students pay for college, and helping them look online and in your community can go a long way. College could be your grandchild’s first stop on the path to achieving their dreams. You can be a part of that journey by making sure money doesn’t get in the way of that.
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