Traps to Avoid from the M&A Dirty Playbook
How to Retain Key Employees when Selling Your Business
September 28, 2021
Life Beyond Business
November 30, 2021People who work in M&A can actually take classes on how to take advantage of people. It’s true. Buyers can go through mergers and acquisitions training, even at some of the most prestigious universities, learning how to pay has little as possible for a family-owned business or privately held company.
M&A transactions
M&A transactions are complex, and it’s natural that buyers and sellers will have some competing interests. When both parties come to the table in good faith, with a commitment to finding a workable agreement, these negotiations don’t have to be overly contentious.
But when buyers are out to do their worst, negotiations can devolve into a hostile power play. Worse yet, some sellers don’t know enough to push back. They get steamrolled and taken advantage of by specialists who wake up every morning intent on getting the best possible deal for their investors.
As a business owner, you need to determine who in your organization is critical to your operation. If you lost that person tomorrow, how would that impact the business? Most importantly, who has the relationships with your customers?
Most business owners will downplay the importance of key employees. They believe that if they push that narrative, a prospective buyer won’t be concerned. But the truth is that experienced buyers will flush that out during initial meetings or at the very least during due diligence. You should never let a buyer discover additional risk in the sales process, especially something that you could have mitigated prior to going to market.
Buyer Tactics
These buyers know what they’re doing and they’re willing to play dirty to get what they want. Here are some of the tactics they might use:
- Tie you up in exclusivity. Many M&A negotiations include a no-shop clause. This is a period of exclusivity when the seller cannot solicit offers from other parties. The due diligence process is expensive for buyers, so sellers sign these agreements as an act of good faith, giving buyers some security that their investment will be worthwhile. Typically, a no-shop clause has a near-term expiration date and are only in effect for a couple of months (45—90 days). Buyers with a lot of leverage, and those working with inexperienced sellers trying to represent themselves, will work hard to tie you up in exclusivity for as long as possible. If they can get away with it, the no-shop clause won’t have any expiration date at all, allowing the buyer to drag their feet indefinitely. This brings us to the next strategy…
- Drag it out. The goal here is to wear the seller down. They’ll request more and more documents. They’ll find “surprise concerns” they need to discuss with their team. They’ll tell you, “We like your company, but we’re finding some issues we need to look into more. We need you to get us X, Y, Z.” They want to amplify tension, use up your mental energy, and distract you from the real work of running your business.
- Re-trading the deal. At the end of the day, the whole play is about getting you to accept a lower value. You will have entered exclusive negotiations based on certain expectations, but they’ll “uncover” issues to rationalize a price adjustment – an adjustment they were planning on from day one.
- They want a one-on-one negotiation with the seller. The last thing these buyers want is a seller who has professional representation and who will put them in a competitive situation with other buyers. They want the seller to think they are the best buyer out there and that they have the best deal. Typically, that is far from the truth.
Psychological Warfare
In every industry, there are good and bad actors. Unfortunately, the bad ones are perfectly willing to engage in psychological warfare. The less interaction the buyer and seller will have after a sale – i.e., the less future success hinges on the seller’s continued cooperation – the less incentive a buyer will have to treat the seller fairly. Unsuspecting sellers can find themselves at the losing end of a winner-take-all kind of game.
Think of this as a boxing match. You’re going into the ring at 0-0 and they’re at 40-2. They’ve been playing the game for two decades. I don’t care how strong you are, you’re not going to win that fight. That is why it’s important to have professional, specialized advisors by your side before you enter the game. Touchstone Advisors is a lower middle market M&A Advisory firm, and we represent business owners and family businesses in all industries.
Steven Pappas
PARTNER, M&A MI M&A ADVISOR
spappas@touchstoneadvisors.com
Direct Line: 860.669.2246
