Original text

Ellen is founder of a law firm serving small and mid-sized businesses, many of which are in the startup stage and do not have the cash to pay her fees. Ellen also has a passion for yoga and teaches at a local studio.

The yoga studio owner wants to retain Ellen for legal advice, but instead of paying cash that she doesn’t have, the owner has offered a small percentage of ownership in the business. Should Ellen take the deal?

Ellen’s options are to forgo the potential business, reduce fees to an amount the owner can afford, or take the business, delaying payment to an unknown date and for an unknown, but potentially larger amount.

If Ellen decides to either decline the business or lower her price, it depends on her need for current cash flow and her time available to take on the work relative to other potential customers who might have the ability to pay.

Before she chooses to trade fees for equity (and become an owner) in the customer’s business, Ellen should explore the following seven issues:

1. What is the business’s financial forecast?

Ellen’s ownership and eventual payout is a long-term decision, so she needs to know if the business is profitable today and its three- to five-year financial profit forecast. Also, is there a well-thought-out business plan to support the projections? Fortunately, Ellen has some experience in the yoga business; if she did not, she should seek expert opinions. She should also look at traditional financial profitability measures as well as cash flow.

2. What is its current financial position?

Ask for the company’s financial information and the owner’s tax returns to understand the studio’s current financial position. If the owner is not forthright in providing this information, it is a red flag. If Ellen goes forward with the deal, there needs to be a clear understanding of her rights to company financial and operating information.

3. How are key decisions made, and how will Ellen’s investment position be protected?

Ellen will be a passive investor/owner in the yoga studio, since she has her own business to run. But she should still review the studio’s governance structure. In particular, she should find out how the owner’s compensation is determined and approved, how she decides to obtain loans or other investors to buy equipment or grow the business, and if the business were to close down, how that decision would be made.

4. How can she “sell,” or monetize, her investment in the future?

She should look at the studio’s operating agreement if it is an LLC, or bylaws, if it is an S or C corp to understand the procedures for selling an ownership interest. The studio may have a 10-year horizon, but if Ellen has a four-year horizon, she needs to determine how she can pull out her investment.

5. What is her legal liability?

If the company has liabilities other than accounts payable, like lawsuits, judgments, fines or tax delinquencies, what responsibility and liability would Ellen have as an owner?

6. What is the company’s valuation?

A company valuation determines the amount of ownership. For example, if the amount of legal services provided is $50,000 and value of the company is set at $500,000, then Ellen will receive a 10 percent ownership in the company. However, if the valuation is $1 million, then Ellen receives a 5 percent stake. Usually, there is a disconnect between the founder’s high valuation and an investor’s, which is much lower. Sometimes, a high valuation is based on a company’s customer list, but in a community with several yoga studios, that is of limited value as potential customers can move freely between studios. If the studio owns assets like the building in which it is located or has an attractive lease, then that can increase valuation.

7. How will her relationship with the owner change?

Ellen now consults with the owner to set her teaching schedule. Going forward, if Ellen becomes an investor/owner in the business, she will have another, different relationship with the majority owner. Ellen should project how the owner will be as a partner and steward of the business; this will be a subjective evaluation based on her interactions with the owner and her assessment of the owner’s operating style and approach.

An alternative to trading services for equity is trading for a loan to be paid with interest at a specific date. The research is much the same with a focus on evaluating if the studio will have the cash at the time to pay off the loan.

While this post has been about an attorney, it also applies to accountants, consultants and others providing a service for a fee. 

Key Lessons:

1. Trading services for equity in a customer’s business can substitute current pay for future pay at an unknown time and amount.
2. You will be a small, passive investor, so make sure the governance structure protects your interest.
3. Determine how you can get out and monetize your investment.