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Four Key Points to a Successful Business Sale

By Stuart M. Brown, Partner and Co-Chair, Commercial Transactions

So you’re thinking about selling your business. You decided that it is “time.” You are emotionally ready. You are financially ready. Great!

Working with sellers like you, here are four (yes, just four) points to consider before you go any further:

  • Create a deal team… you will need an experienced accountant, attorney, intermediary and financial planner. Experience is key, but do NOT settle for experience. Make sure that you have a good gut feeling for the person/firm. A good gut feeling includes being able to communicate easily and feel like you are on the same page as your advisors.
  • You will sell on your company’s past performance; however, the purchaser will buy based on what it views as future opportunities. So be realistic in your goal for a sale price. Be as introspective as possible (aka, don’t believe your own sales pitch because buyers will poke holes).
  • No one can guarantee you anything in addition to what you receive at the closing table. There are multiple ways to characterize sale price:
    • Cash at closing (which is most preferrable)
    • Deferred payments (you, as the seller, take back “paper,” a promissory note which is a contract from the buyer to pay you at a later date)
    • Contingent payments (these payments are predicated on an event occurring such as gross revenue or EBITDA targets post-closing, a concept referred to as an “earnout”)
    • Rollover equity (this means that you, as the seller “partner” with the buyer because you either retain a certain amount of your company’s equity or you get equity in the buyer in lieu of cash).

Be careful when it comes to structuring the payment of the sale price. The question that I often ask clients is would you rather sell your business to me if I offer you $50 million or to Sally if she offers you $7 million? The answer is obvious, right? Clearly, my offer is better. Oh, did I fail to mention that Sally is paying you $7 million at closing but I’m paying you $1 million at closing and $1 million a year for the next 49 years? Still think my offer is better?

  • If your transaction was a Broadway show, you should be in the starring role as the “reluctant seller.” Do NOT be anxious, meaning you should not purchase that red Ferrari until the deal closes. You have maximum leverage early in the negotiation process. Use your leverage, but don’t be a pig… remember, ultimately, pigs get slaughtered.

Each one of these points is worthy of a much longer discussion. Hopefully, you will choose a deal team that can properly advise you and manage your expectations. By the way, deals take time — don’t expect to close in 60 days. It rarely happens. So, enjoy the journey because the destination is within reach of the patient and thoughtful seller. Good luck!


Jan 10, 2024

Brown Moskowitz & Kallen Represents A&R Bulk-Pak in Sale to NOVA Infrastructure


Brown Moskowitz & Kallen Represents A&R Bulk-Pak in Sale to NOVA Infrastructure

South Carolina-Based Packaging and Logistics Company for Petrochemical Industry Elevates Service to Global Chemical Industry through Acquisition by NOVA  

Chatham, New Jersey December 2023 — Brown Moskowitz & Kallen, P.C. (BMK) recently represented Moncks Corner, South Carolina-based A&R Bulk-Pak (A&R), a leading provider of contract packaging, transloading, warehousing and other vital supply chain services to the petrochemicals industry in its acquisition by NOVA Infrastructure, a middle market infrastructure investment firm that invests in the environmental services, transportation, energy/energy transition and communications sectors in North America.

Over the past decade, the Port of Charleston has evolved into one of the most active export hubs for the North American chemicals industry, with A&R among the leading suppliers of essential supply chain solutions. A&R operates a 240,000-square-foot warehouse at the port with two high-speed automatic packaging lines, rail access to the CSX main line and onsite storage for more than 120 railcars. The facility engages in transloading and packaging of polyethylene pellets for leading chemical producers and trading houses. The sale to NOVA enables A&R to accelerate its growth in serving global chemical providers.

As part of the acquisition by NOVA, A&R has entered into a strategic partnership agreement with Harbor Logistics, a portfolio company within NOVA. Harbor provides transportation, logistics and warehousing services in Charleston. Harbor, A&R and NOVA are now long-term partners operating in concert to deliver comprehensive supply chain solutions throughout North America.

“The acquisition by NOVA and aligned agreement with Harbor Logistics offers significant strategic expansion opportunities to A&R,” said Norman D. Kallen, Partner and Co-Chair of the Brown Moskowitz & Kallen Commercial Transactions Group, who served as lead M&A counsel for A&R. “This transaction involved structuring several creative solutions that enable NOVA to leverage A&R’s dominant position at the Port of Charleston while providing a pathway for A&R to penetrate the global chemical industry marketplace and offer elevated supply chain solutions with NOVA-owned Harbor Logistics.”

Mr. Kallen was joined in the transaction by Justin Escher-Alpert, Senior Counsel of Brown Moskowitz & Kallen. A&R was advised by Michael Givner of IMG Business Advisors. Additional legal counsel was provided to A&R by Joshua Laff of The Law Office of Joshua F. Laff.

NOVA Infrastructure & Harbor Logistics were advised by Scudder Law Firm, P.C., L.L.O. and Jones Day.


About Brown Moskowitz and Kallen, P.C. 

Brown Moskowitz & Kallen, P.C. is a New Jersey-based law firm serving privately held businesses locally, nationally, and internationally. BMK provides comprehensive counsel at every stage of the business life cycle with practice areas in commercial transactions, finance, litigation/dispute resolution, real estate, land use, technology, tax, trusts and estates. For more information, visit https://bmk-law.com/

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Dec 21, 2023

BMK’s Stuart Brown Featured in EisnerAmper Middle Market M&A Series

BMK’s Stuart Brown, Partner and Co-Chair of the Commercial Transactions practice, is once again featured in Eisner Amper’s Solutions In Sight Middle Market M&A Video Series. This time, EisnerAmper tax partner Jordan Amin, Scott Daspin, Director of Investment Banking at Triad Securities, and Stuart discussed the emotional aspects of selling a business. The trio addresses the emotions sellers commonly experience amidst a business sale and the ripple effect the process has on personal and professional relationships. Topics covered in the video include:

  • Determining when one is emotionally ready to sell a business
  • Why an M&A transaction is a team sport and why the seller relies on the team to navigate both the numbers and the emotional touchstones inherent in every transaction
  • Protecting one’s mindset throughout the process
  • Managing family expectations during and after a sale
  • Feeling confident in the buyer to steward the business post-sale
  • Preparing for life after the closing and avoiding “seller’s remorse”

Bottom line: M&A transactions are not just about the numbers. Emotions inform whether a sale is deemed successful just as much as the financial outcome. To view Stuart’s discussion with Jordan and Scott, please visit https://www.eisneramper.com/insights/solutions-insight/solution-sessions-videos/middle-market-merger-acquisition-video-1223/


Dec 21, 2023

The Corporate Transparency Act and New Disclosure Requirements


By The Corporate Group at Brown Moskowitz & Kallen, P.C.

The Corporate Transparency Act and New Disclosure Requirements

A new federal law, taking effect January 1, 2024, imposes new disclosure requirements on privately held companies. The Corporate Transparency Act (the “Act”) takes aim primarily at smaller companies in industries that are not highly regulated. The Act — part of the U.S. Anti-Money Laundering Act of 2020 — is intended to penetrate multiple layers of entities to identify, and thus deter, illegal activities, including terrorist financing, money laundering, and tax fraud.

Who Reports

Businesses that meet the definition of a “reporting company” are required to report certain information about the entity and its beneficial owners via the U.S Treasury Department’s Financial Crimes Enforcement Network (FinCen) secure website. The data will be available to U.S. law enforcement and other government agencies, including the IRS, and select financial services companies, but not the public.

Definition of “Reporting Company”

There are two types of reporting companies under the Act: A domestic entity formed or registered by filing a document with the office of the secretary of state, or any applicable office, under the law of a state or Indian tribe and a foreign entity formed under the law of a foreign country and registered to do business in any U.S. state or U.S. tribal jurisdiction. Unless an exemption applies, discussed below, EVERY business formed in the U.S. or doing business in the U.S. is subject to reporting under the Act – including corporations, limited liability companies, and most limited partnerships. Most trusts are likely excluded since they are not created by filing with a state authority.

Exemptions from Reporting

There are 23 exempt categories of business entities. A full list can be found in the reference guide posted by FinCEN on its website: Beneficial Ownership Information Reporting | FinCEN.gov. The more common exemptions cover public companies, “large operating companies,” public accounting firms, regulated insurance companies, registered investment companies and advisers, registered venture capital fund advisers, banks, securities brokers and dealers, exchanges, regulated public utilities, tax-exempt non-profits and trusts, subsidiaries of exempt entities, and “inactive entities.” The exemption for “large operating companies” requires constant monitoring of employee levels and revenues. The law defines this entity as one that (i) employs more than 20 employees full-time in the U.S. (no aggregation), (ii) has filed U.S. income tax returns for the prior year reflecting more than $5 million in aggregate gross receipts or sales from U.S. sources, and (iii) operates a physical office in the U.S.

Data to Report

Reporting companies must report data about the entity, beneficial owner information (“BOI”), and, for entities formed on or after January 1, 2024, company applicant information. Information to be reported about a reporting company includes the entity’s legal name, trade names, DBAs, address, federal Tax ID number and the jurisdiction of formation or registration. The law describes a “beneficial owner” as an individual who, directly or indirectly, exercises substantial control over a reporting company or owns (directly or indirectly) or controls at least 25% of the ownership interest therein. The information to be reported includes legal name, birthdate, residential street address, and the identifying number from and a copy of ID such as a non-expired driver’s license or passport. A “company applicant” is the person who “directly files” the document that creates the reporting company (e.g., the certificate of formation) or who is primarily responsible for directing such filing. The same personal information that is reported for beneficial owners is to be reported for up to two company applicants. Reporting companies must collect, store, and report personally identifiable information (“PII”) securely or risk penalties under the Act.

Filing Deadlines

The Chart below lists the filing deadline for initial reporting by reporting companies. Reporting companies must report any changes in BOI to FinCEN within 30 days after a change occurs.

Date Formed or Registered in U.S.

  • Formed or registered before January 1, 2024
  • Formed or registered on or after January 1, 2024, but prior to January 1, 2025
  • Formed or registered on or after January 1, 2025

Filing Deadline

  • January 1, 2025
  • Within 90 calendar days of receiving actual or public notice of the effective date of creation or registration
  • Within 30 calendar days of receiving actual or public notice of the effective date of creation or registration

Civil and Criminal Penalties for Noncompliance

The penalties for providing false or fraudulent information or failing to submit a complete initial or updated report are fines of $500 per day up to a maximum of $10,000, imprisonment for up to two years, or both. Penalties for the unauthorized disclosure or use of BOI are fines of $500 per day up to a maximum of $250,000 and imprisonment for up to five years for the knowing unauthorized disclosure or use of BOI. The prompt correction of inaccurate information (within 90 days of becoming aware) may avoid penalties.

BMK is Ready to Help Your Business Navigate the CTA

Contact us today at (973) 376-0909 if you would like help analyzing whether your business is a reporting company under the CTA. We can answer your questions about the CTA and advise the next steps your business should take regarding (i) updating of contracts, company documents and deal agreements, (ii) creating or updating company internal policies/procedures, and (iii) implementing internal systems for collecting and reporting data securely. Accurate data collection and reporting with a process for ensuring the security of PII are key to staying compliant with the Act.

Disclaimer: Any legal advice regarding the application of the Act and reporting obligations requires a new Firm engagement. BMK’s existing client engagements do not contemplate legal advice or analysis regarding compliance with or reporting obligations under the Act. 

©Copyright 2023, Brown Moskowitz & Kallen, P.C. All rights reserved. This article is for informational purposes only and is not intended to constitute, and does not constitute, legal advice.

Dec 11, 2023

Kenneth L. Moskowitz Recognized as a 2024 SuperLawyer®

Brown Moskowitz & Kallen Co-Founder, Partner and Chair of the Litigation and Dispute Resolution practice, Kenneth L. Moskowitz, has been recognized as a 2024 SuperLawyer® by Thomson Reuters. The SuperLawyers® designation is a highly coveted peer recognition of professional achievement by the legal community.

An attorney can only obtain a SuperLawyers® designation via nomination by their peers in a research-driven, multi-phase patented process. The annually published list comprises a comprehensive directory of the top five percent of attorneys in New Jersey.

You can read Ken’s SuperLawyers® profile here: https://profiles.superlawyers.com/new-jersey/chatham/lawyer/kenneth-l-moskowitz/4323a70a-1608-4f13-b417-365e5118c975.html

Nov 30, 2023

Sole Business Owners and Catastrophic Illness: What Happens if I Become Disabled and Cannot Run My Business?

by Norman D. Kallen, Partner, Brown Moskowitz & Kallen, P.C.

The COVID-19 pandemic brought to light a critical issue for which all small business owners should always have contingency plans: what should a sole business owner do to maintain business continuity in the event the owner becomes ill or otherwise disabled?

Sole proprietors, sole members of LLCs, sole shareholders of a corporation, self-employed individuals and independent contractors often are the only persons in their businesses authorized to conduct certain aspects of business activities on behalf of their entity or themselves. For example, these individuals may have sole authority to handle banking activities (sign checks, etc.), review and approve payment of payroll and accounts payable, review and approve invoices, and oversee policy related to accounts receivable. What if a sole member of an LLC is also the only officer of the company? Who steps into his or her shoes in the event of illness or other disability? Is there a mechanism for temporarily authorizing a trusted advisor, friend or family member to act on the owner’s behalf to handle any or all of the above-described activities?

The best way to provide for these types of circumstances is to plan in advance and prepare an agreement appointing a designated individual to undertake “running the business.” A power of attorney or a simple signatory authority document from a bank may be too broad or too narrow to meet the owner’s requirements. Moreover, if the business is operated in the form of an LLC or corporation, the only documentation that your bank may have for you to enter into is the authorization of an additional signatory on checks and loan matters. To that end, you may not wish to grant an employee, trusted advisor, friend or family member that authority immediately. Without some sort of agreement in place with either an employee, trusted advisor, friend or family member, you are placed at a disadvantage from a management perspective.

An owner should make a list of tasks that are essential to preserving the business in his or her absence. Next, the owner should very closely consider who he or she trusts to operate the financial aspects of the business. After these issues are clarified, the owner and the “stand-in” need to come to an agreement in writing regarding the duties, rights, liabilities, indemnification and the commencement or effective date for these duties and a date of termination of the agreement.

The agreement should explicitly set forth:

  • The current duties of the business owner that would need to be continued in the event that the owner is unable to carry out those obligations;
  • The full and proper legal name of the “stand-in”;
  • The “trigger” circumstances under which the agreement will take effect;
  • The exact list of undertakings of the “stand-in” which to a large extent would mirror 1. above;
  • The grant of authority to the “stand-in” to execute the tasks set forth in the agreement such that a third party, including a bank, would be able to rely on the document as proper authorization for the “stand-in” to act;
  • Allocation of risks – liabilities and indemnification; and
  • Circumstances under which the business owner terminates the authority of the “stand-in”

Standard terms and conditions would also be included. It is important to have the document notarized, because it will, no doubt, be presented to banks or other institutions that require this formality.

The COVID-19 public health crisis was a wake-up call for all sole business owners and individual business entrepreneurs. The critical point is to consider and plan for illness and disability in any circumstance to ensure the continuity of your business in your absence.

If you would like more guidance, please contact Norman D. Kallen at Brown Moskowitz & Kallen, P.C. at (973) 376-0909, ext. 1114 or via email, nkallen@bmk-law.com

Oct 03, 2023

BMK Prepares Succession Plan for Industry-Leading Landscape and Hardscape Contractor

Succession planning is about actively listening to the needs and wants of business owners, discussing realistic goals based on experience and crafting a practical and achievable plan. Brown Moskowitz & Kallen recently advised River Edge, New Jersey-based leading landscape and hardscape company, Let It Grow, Inc. in the development of a succession plan that would sustain the legacy of its founder Paul T. Imbarrato.

Established in 1986, the Company is renowned for its expertise in the planning, execution and delivery of world-class design/build and landscape projects throughout the Northeast. With Mr. Imbarrato at the helm, Let It Grow has evolved into a leading regional firm serving prominent organizations such as Prudential, Unilever, Rutgers University, NJIT, and Westfield Garden State Plaza, among many others.

The succession plan was a collaborative effort developed over the course of several conversations involving Mr. Imbarrato, the Company’s incumbent accountant, an investment banker, a family office consultant, a benefits and insurance consultant and BMK. Ultimately, Mr. Imbarrato shared equity in Let It Grow with certain team members pursuant to a vesting schedule designed to motivate the recipients and ensure continuity of management. The succession plan also enables Let It Grow to remain independent while creating an incentive for the continuing recruitment of key industry talent. While Mr. Imbarrato is not ready to retire, his objective, in part, was to create a pathway for eventual retirement that does not require acquisition by private equity. Rather, Mr. Imbarrato wanted to ensure the Company’s sustainability for many years ahead.

“I was seeking a way to continue my firm’s legacy while enrolling my existing highly valued team in ownership of the Company,” said Mr. Imbarrato. “I take great pride in having built Let It Grow to the success it is today. I am now confident that success will continue in the hands of my employee owners even after I am no longer engaged in the day-to-day activities of the Company. BMK was instrumental in helping me transform my vision into a comprehensive and practical plan. ”

“The Let It Grow succession plan is a key example of how BMK listens to client needs and devises innovative solutions that align with their professional and personal desires,” said Stuart M. Brown, Partner and Co-Chair of the Commercial Transactions practice at BMK. “We knew Paul Imbarrato did not wish to sell his Company as his means of exiting the business he painstakingly created over several decades. He has great faith in his dedicated and talented employees. While no one can predict the future, Paul takes comfort knowing that he implemented a succession plan providing for continuity of management upon his retirement and establishing a means for the Company to continue to grow and thrive..”


Sep 19, 2023

Reminder To Contracting Parties: An Ounce Of Prevention Is Worth A Pound Of Cure

By Kenneth L. Moskowitz, Esq.

While the pressure to make deals or “book” work is certainly understandable, especially in the wake of the Covid-19 crisis and the on-going recovery, business owners and senior managers would be wise to resist the temptation to complete potentially problematic deals and, instead, should remain faithful to fundamental contracting principles.

As a threshold matter, contracting parties must be careful to complete all of the diligence necessary to ensure that the proposed “business deal” makes economic sense. As every business owner well knows, there simply is no substitute for such investigations, and shortcuts often lead to poor and regrettable deals or contracts.

Once being satisfied that a deal makes economic sense, contracting parties should take the time and maintain the discipline necessary to ensure that the deal made in principle is documented accurately, and that all of the material terms and conditions are clearly stated in the contract. Among other things, the contract must include a precise description of the subject goods, services and/or deliverables, as well as the schedule for such performance and for receipt of the required payments. Depending on the circumstances, the inclusion of an attorneys’ fee/cost of collection term, arbitration and/or choice of forum provisions may be prudent, if not necessary. Again, as business owners and their contract agents know, even what may appear to be a “good deal,” if not properly documented, can lead to a disastrous result.

Further, contracting parties should not be satisfied that the written agreement “more or less” memorializes the parties’ agreement, or take for granted that the other party to the contract has the same understanding and/or will faithfully discharge its contract responsibilities unless those duties are clearly and plainly recited. The hope or notion that once an ambiguous contract is signed the other party will perform as you expect, and/or that the other party can be counted on later to resolve contract ambiguities in good faith and on a fair and equitable terms consistent with your intent at the time of contracting, may not be realistic. The assumption of such risk — risk that may have been avoidable — would be regrettable and certainly could be costly.

Finally, while each potential contract negotiation has its own dynamics, fair and equitable contract terms should be negotiated, not dictated by one party. Even where one party to the contract is recognized to enjoy a superior bargaining position, the other party should resist a “take it or leave it” ultimatum that may leave it exposed. In that circumstance, the party in the inferior bargaining position should carefully consider pressing for the negotiation of those essential terms that are necessary to make the deal fair to both parties or, at the very least, “chipping away” to make the agreement more palatable.

Contract litigation is often the result of some failure in the negotiation and/or documentation of a business deal. Business litigation is time consuming, expensive and can have the detrimental effect of diverting the parties’ attention from the management and operation of their businesses. While the potential for litigation cannot be eliminated, completing the requisite diligence and exercising the needed discipline in the negotiation and documentation of the business deal or contract should reduce that risk.

©Copyright 2023, Brown Moskowitz & Kallen, P.C. All rights reserved. This article is for informational purposes only and is not intended to constitute, and does not constitute, legal advice.

Mr. Moskowitz is a former prosecutor and is a founding partner of Brown Moskowitz & Kallen, P.C., in Chatham New Jersey. He represents clients in diverse business disputes, commercial litigation, internal investigations, “corporate divorce” matters, insurance coverage litigation and other business-related disputes.

For further information, please feel free to contact Mr. Moskowitz by email at klm@bmk-law.com, or call him at 973-376-0909.

Sep 06, 2023

Understanding Force Majeure Clauses in Business Contracts

By Stuart M. Brown, Partner and  Norman D. Kallen, Partner

Brown Moskowitz & Kallen, P.C.

How should a business respond when it or its counterparty cannot fulfill obligations under an existing agreement or when entering into a new business relationship? There are myriad practical and legal answers to the question. Here, the focus is the application of the concept of force majeure in the context of contractual business relationships.Read More

Aug 08, 2023

Brown Moskowitz & Kallen, P.C. Represents Finelli Consulting Engineers, Inc. in Sale to Universal Technical Resource Services, Inc.

Brown Moskowitz & Kallen, P.C. recently represented Finelli Consulting Engineers, Inc. (Finelli) of Washington Township, Warren County, New Jersey in connection with its sale to Universal Technical Resource Services, Inc. (UTRS), an international provider of leading-edge scientific, engineering and information technology and communications  The Finelli acquisition will enable UTRS to expand its civil engineering offerings throughout Northern New Jersey and Eastern Pennsylvania, where its existing RKR Hess Civil Division currently operates. The RKR Hess Division focuses on civil and environmental engineering, surveying and wetland services for municipalities and private clients.

The transaction includes the purchase of substantially all Finelli assets and retains the firm’s staff, which will continue to operate from its Washington Township location.

The Brown Moskowitz & Kallen team included Stuart M. Brown, Partner and Co-Chair of the Commercial Transactions practice as lead counsel, along with Keith E. Marlowe, Partner, Real Estate, and Justin Escher Alpert, Senior Counsel. Accounting services were provided by Mitchell Sharpe and Jenny Sharpe of SKC & Co.


Jul 25, 2023
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