Buyer Discussions, Due Diligence, and Closing the Deal

It’s no secret… it’s a seller’s market for business owners right now. “Moving too fast, however, can also lead to dollars left on the table. A recent survey of Private Equity professionals cited the ‘lack of proper exit planning’ as one of the root causes of value erosion in mergers and acquisitions (M&A),” according to a recent Axial Radar: The Year of the Seller.

We can’t stress it enough, the key to the successful sale of your business is preparation and having a thorough understanding of the process and players – even in a seller’s market. You need to make sure that you have all of your i’s dotted and your t’s crossed.

Seller beware: A deal that seems like a sure thing can change in the blink of an eye… which is why we always say: Don't celebrate until the ink is dry and the cash is in the bank!

In our previous article in this series, You’ve Received an Offer for Your Business… Now What? Part 3, we discussed Understanding How to Work with Your Business Broker, including a brief of overview of Broker’s Opinion of Value and the Importance of the Broker’s Teaser.

Let’s take a look at the final steps in the process of selling your business, including the importance of the initial conversations with potential buyers, the necessary legal paperwork such as non-disclosure agreements and the Letter of Intent (LOI), and what you may expect during due diligence and closing.

Buyer Discussions

Once your broker has vetted potential buyers, they will engage in discussions with them – frequently in three stages before you sign a Letter of Intent (LOI) and the due diligence process begins.

  1. General, Anonymous Discussions: A general discussion between the prospective buyers and your broker. At this point, your company name will still not be revealed, and topics will include revenue, earnings, competition, and industry dynamics, etc.
  2. “The Book”: If the buyer is truly interested, discussions will continue between the buyer and your broker. The buyer will be asked to sign a Non-disclosure Agreement (NDA) and will receive a Confidential Information Memorandum (CIM), or “the book”, which will provide much more detailed information about your business. The book is designed to further pique the buyer’s interest in the hopes that they will want to meet with you and then submit an Indication of Interest (IOI) or Letter of Intent (LOI).
  3. Buyer Meetings: If you have multiple buyers interested in your business, you will be able to choose which buyers you want to meet with. During these meetings, you will have a chance to ask questions, understand why the buyers are interested in acquiring your business and determine who the best buyer may be for your business. The buyers will have a chance to ask you questions and determine whether they are still interested in acquiring your business. We urge owners not to become enamored by buyers but rather use this time to determine who they feel is the best fit for their business.

After the buyer meetings, those who are still interested in your business will be asked to submit a Letter of Intent (LOI) or Term Sheet, which is a written, non-binding document that outlines the proposed price and terms. Hopefully, you will receive multiple LOIs and you will be able to choose which buyer you want to sell to based on both the LOI terms and what you learned about them in the meetings. While this is often an exciting time for the seller, it is important to remember that an LOI is not legally binding – things can always change… especially during the due diligence process.

Surviving the Due Diligence Process

After the LOI is signed, the buyers will conduct a thorough review of the seller’s business. This process is called due diligence, which is by definition an “investigation,” and during a business sale, it means the buyer will leave no stone unturned! Every issue they find could be a reason to reconsider and/or reduce the purchase price, which is exactly what sellers DON’T want to happen.

There are some steps you can take to help expedite this due diligence phase, especially if you start well in advance, such as:

  • Disclosing any and all current and potential litigation, claims, threats, and issues BEFORE the LOI is signed. Surprises will erode or wipe out trust between the buyer and seller very quickly.
  • Carrying the appropriate types and amounts of insurance to mitigate unplanned events in your business.
  • Obtaining reviewed or audited financials from a reputable CPA firm for the years leading up to the sale.
  • Minimizing the amount of personal expenses that are on the company’s books and documenting them annually so you can build a case for adding them back to your profits.
  • Letting the unproductive and “glass half empty” team members go who may cost you dearly in terms of both dollars and team morale.
  • Getting rid of all clutter and putting a fresh coat of paint on your entire facility; first impressions make a huge difference.
  • Creating an electronic data room in a secure location to store copies of all important business documents. This would include corporate filings, shareholder documents, board meeting minutes (yes, you need these!), customer and vendor contracts, financial statements, tax returns, employee contracts, litigation claims, insurance policies, etc.
  • Having your attorney review your lease as well as customer and vendor contracts to be sure they are assignable (can be transferred) to the buyer at the time of the business sale.
  • Documenting your compliance with all tax and employment laws, rules, and regulations.
  • Verifying that you have no environmental issues, even if you do not own your building and you lease your space.
  • Being sure your shareholders are on board with your strategy to sell to an outsider at the LOI price, even if they do not own a controlling share. Disgruntled shareholders have been known to disrupt deals at the last minute.

Due diligence may last from one to several months, depending on the complexity of your business and the size of the transaction. Time can kill deals as buyers and sellers get weary, change their mind, and simply lose faith in the value of the transaction. It is critical for owners to stay focused on business performance during this stage since decreasing revenue and profits is the fastest way to end the deal process. Remember: You can't celebrate until the ink is dry and the cash is in the bank.

And, Finally… the Closing

As due diligence winds down, legal documents will be prepared by the buyer’s attorney and negotiated with you and your attorney over the course of several weeks. It is essential that you hire an attorney who has business sale experience to ensure that the terms of the deal are as favorable to you as possible and your legal exposure post-sale is minimized. The closing itself is most often completed via email and video calls and the funds are sent via wire transfer to the seller immediately after documents are executed.

Only then can sellers celebrate!

Selling your business is often a long and arduous process, which makes it easy to understand why approximately only 50% of the deals that get to the diligence phase actually close.

We want you to have choices and be able to pick the buyer that will be best for your company and for you. Take the time to make sure you’re fully educated about all of your exit options and find the right people to work with who will help you achieve the most successful outcome.


You need the right tools, resources, and guidance to get started! Business Transition Academy’s proven six-step planning process and training programs provide you with the roadmap you need to exit your business on your own terms. Download our FREE book and gain access to more FREE business owner education resources, including:

  • Introductory Course – How to Plan a Successful Business Exit
  • BTA Owner Readiness Assessment
  • Success Stories
  • Real-Life Lessons Learned by Owners

We will show you the steps you need to take to plan for a successful business sale or ownership transfer.

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Material discussed in this communication is meant to provide general information and should not be acted on without obtaining professional advice tailored to you or your company’s individual and specific needs. Any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used by any person or entity, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This information is for general guidance only and is not a substitute for professional advice. Information presented is believed to be factual and up-to-date; however, BTA makes no guarantee as to accuracy, completeness, suitability, or validity of any information within this communication and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages from its display or use. Any forward-looking statements are believed to be reasonable; however, BTA gives no assurance that such expectations will prove to be correct.

 

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