If you own a successful privately-held business, it is possible you have received a call from a private equity firm telling you they have specifically targeted you and want to buy your business. You have heard now is a good or even great time to sell. The price they offer seems reasonable or even good. The buyer tells you they pay cash and can get it done quietly. “It will be quick, easy and fast. No need to shop the deal or talk to your lawyer, of course. We do this all the time.” What should you do?
First, don’t commit to anything. Even if you have been through a sale process, assume the private equity firm has better information than you and perhaps is attempting to leverage that into a quick, off market deal. Gather as much information from the private equity firm as possible.
Here are a few questions to ask:
- How did you arrive at this price?
- Can you provide me with market data on why it is a fair price?
- What other deals in the industry have you done?
- Why are you targeting this industry? Why my company?
- Do you have any references of people I can call whose business you purchased? Or with whom you tried but could not?
- Do you have resources available to fund the deal or will you need to use debt?
- What is the time frame you anticipate between signing a letter of intent and closing?
Do some research. Check their web site and ask people you trust about them. Check LinkedIn to see if you have any mutual connections with their principals. Their website will have a list of their portfolio companies and you can check LinkedIn for any mutual connections with current or former employees at those companies. Do a Google search and find out if that firm or its principals have sued prior sellers. Most importantly, don’t provide information to them yet. Or at least not until they sign a bulletproof non-disclosure agreement.
Your personal and professional goals should drive any process with a private equity buyer. Are you ready to sell your entire equity stake? It could be time for you to spend time with your family and friends. Or, perhaps you are more interested in a new challenge and taking your business to another level. In that case, you might be interested in a rollover in which you share ownership of business with the private equity firm after the sale and leverage the private equity firm’s expertise and resources to capture some of the upside through a second bite at the apple. In either event, it is never too early to start having those important conversations with your family and friends.
The simplest way to set yourself up for success is to assemble a team of experienced advisers who understand your goals at an early stage in the process. Is your lawyer and their firm one that regularly represents or sells companies to private equity firms? Does your lawyer understand your business and your personal goals? Does their firm have the technical expertise for tax, intellectual property, employee benefits, litigation, insurance, environmental and real estate under one roof to do whatever is necessary? Do you have a good personal estate planning lawyer and an accountant to work through structuring issues with your legal team?
Other necessary business advisers like an investment banker can help keep the buyer honest by drawing on the banker’s experience in comparable deals and market standard terms. The investment banker can also create leverage for you by conducting an auction or other competitive process, including by forcefully articulating the company’s value. Often clients wonder that if they have a preferred buyer, why should they pay a percentage of their sale price to an investment banker? It is important to remember that an offer is not cash in your pocket and an experienced investment banker can create a process or the appearance of a process, which can be leveraged.
Investment bankers can also help improve the terms and conditions of any deal by advocating to remove an escrow (where part of the consideration in placed in a third party account but subject to deductions or claims by the buyer) or an earnout (where pay of the consideration is paid once the business achieves future revenue or profitability targets or it “earns it”), which are likely any buyer’s requirements.
For more tips about selling your business to a private equity firm, read more at thompsoncoburn.com/INNO.
Thompson Coburn LLP is a full-service business law firm with more than 400 attorneys nationwide. For more than 90 years, we have provided the legal services and counsel our clients need to realize their most critical goals.
