When preparing to sell a business, Womble Bond Dickinson Partner Scott Anderson says it's best not to hide anything because the buyer, through diligence, is going to find it.
"So, you might as well go ahead and do yourself a favor and plan it out early how you will remedy it, and/or put it in context — tell the story about it so that you know why it's there," he says.
The chemistry could be great between buyer and seller, but the minute the buyer gets the sense — whether wrong or right — that the seller is not being transparent or that they're hiding something, that mistrust seeps into every aspect of the negotiations and trust is lost.
Sellers, he said during last year's Charlotte Smart Business Dealmakers Conference, should first be honest with themselves and identify any issues within the business that could affect the outcome of the deal. It's also important that sellers are honest with the buyer, especially if it's a rollover and business ownership plans to stay with the company.
Often business owners don't start early enough getting their company's house in order before going to market. That, Anderson says, can create trouble later when the company tries to transact — whether with a buyer or through an IPO.
"We see that all the time," he says. "And it's things that, because you're operating a business, you don't have time to manage the tax accounting, to manage the option awards, to manage even customer contracts. But those are the kind of things that really do come to light as you grow and you bring in more management team to handle those line items. But even the early days, 30 to 40 percent of the deals we see, there's issues with things like options, the classification of employees, or that will prevent a company from owning its IP."
Compounding this now is the uncertainty in the market. He says deals are taking a little longer and there are deeper dives during diligence as buyers look to ensure they're getting a return on their investment. That can sometimes expand the timeframe from the LOI to closing, or things happen in between the LOI and closing that can cause an indefinite pause.
But, he says, irrespective of the issues in the overall economy, "the fundamentals are always important. And deals will always get done based upon core fundamentals."
Zooming out, he says one thing he's seen that's affecting deal dynamics is the anti-trust review. He says the Department of Justice and the FTC have taken a much more aggressive stance than they had over the last several years as they review filings to determine if there is anti-competitive behavior. It's something companies should, along with their advisers, pay attention to because it could add delays to the process as the government reviews the deal.
Further, he says deals can get into trouble during the very early stages when the PowerPoint is sent to a buyer. If anti-competitive language is used in the communications between the buyer and seller, it could raise a flag for a regulator and the deal could be tanked. Anderson says it's wise to talk with an adviser to walk through what can be said to get certain points across.
In an environment in which there are many events that transpire that are outside of a seller's control, he says it's important to be prepared.
"When you're ready to sell or even if you think that you might be ready to sell is when you should start talking to people," Anderson says. "You don't want to go out to the market at the wrong time for your company because if you don't sell then you're going to have a story to tell as to why you didn't."
