JEROME FOGEL
Partner, Corporate Practice Group;
Chair, Sports and Entertainment Group
Fogel & Potamianos LLP
For owners of successful middle-market businesses, a company sale is the culmination of decades of hard work, a career-defining milestone where the outcomes, like the game of golf, vary widely: from eagles, to pars, to quadruple bogeys.
Looking for answers on how to save business leaders some strokes, we spoke with corporate and M&A attorney Jerome Fogel of Fogel & Potamianos LLP for a wide-ranging conversation on both high-level strategy, cautionary tales, and practical wisdom.
Fogel, a founding partner of Fogel & Potamianos LLP, specializes in mergers and acquisitions and corporate counsel to private middle-market companies. Recognized by the Legal 500 US Elite for his corporate and M&A expertise, Jerome is known as a skilled dealmaker in complex legal and business environments. Fogel & Potamianos LLP is a corporate law firm recognized by Chambers & Partners, the foremost authority on legal rankings, for excellence in corporate law.
Whether you are considering the sale of your company, actively negotiating an LOI, or in the middle of a deal, this Q&A offers timely guidance on how to shoot your best score.
When is the ideal time to exit your company?
FOGEL: The ideal scenario is you sell when you want to and the market is most favorable. That is not always the scenario owners are faced with. Sometimes you just want to get out of the business, and with the help of your investment banker, field the best offer the market bears at that point in time. Sometimes you want to hand it to the next generation, or sometimes there are extenuating circumstances where you are in the proverbial bunker: health or personal challenges that are keeping you from the spending time on the business you know it needs. Whatever the reason, you sense the next season ahead is a season for new ownership. And that is when you need expert advisers in your corner to help you navigate the transition.
What is the difference between running a company and preparing a company to attract the right buyer?
FOGEL: Buyers are attracted to a well-oiled machine built on a solid foundation. That means you have every club in your bag working: a turnkey operation independent of any one person, with a solid financial, operational, and legal foundation in place. Then you have a maximally performing company. You can decide to sell, or you still have a great business that is firing on all cylinders that you theoretically could keep if you choose, especially if the market response is not reflective of the company’s value. At Fogel & Potamianos LLP, we released our 2026 Checklist that we update annually with 95 items that every privately held middle market company should catalog and assess in order to attract quality institutional and strategic buyers.
What is something that most sellers don’t know before they enter a sale?
FOGEL: Like any challenging golf hole, there are hundreds of ways that a transaction can go sideways. In a private equity transaction, for example, rollover equity can offer a second opportunity to participate in future growth, but its value depends on the buyer’s capital structure, future financing, and the protections negotiated at the outset. In a recent case, Feeney Brothers Excavation vs. Artera, a buyer mispresented the value of rollover equity to the seller to induce the seller to take less cash up front with a higher upside. The $30MM in rollover equity then became worthless after the buyer took on $2B in debt refinancing. The sellers then sued based on reliance on the representations made prior to their sale; however, the buyer included an antireliance clause on any representations made outside of the agreement, and the sellers lost.
What parting advice do you have for company sellers?
FOGEL: As a general reminder that I share with every client: there are three distinct phases to an M&A transaction. The first phase is “unbridled excitement” by the parties and their advisers on the prospect of a new deal. The proverbial bottom of the mountain. The second phase is the “valley of the shadow of death,” when the parties learn just how many painstaking, bespoke details and negotiations are involved in their deal. They wonder why they got into this business and into M&A in the first place. The mountaintop seems further away than ever. The third phase is the “mountaintop arrival,” when the deal is closed. And everyone can’t wait to do it all over again. See you at the top…and on the course.
Learn more at fpgeneralcounsel.com.
