Benchmark International is delighted to share the testimonial of our recently acquired client, Parity Software.  

Benchmark Internationalsuccessfully facilitated the acquisition of Musgrave Crafted Spirits (Musgrave). Watch as Simone Musgrave, the founder of Musgrave, shares her rationale for divesting from the brand, her journey with Benchmark International, and her future endeavours following the transaction.   

Benchmark International facilitated the transaction between Marlyn Chemicals, Marlyn Vulindlela (Marlyn Group), and Letsema Holdings (Letsema). Watch as the former founder of Marlyn Chemicals shares his experience working with Benchmark International throughout the M&A process.

Benchmark International is pleased to announce the acquisition of Boiler and Industrial Plant (Pty) Ltd by Entruevest Holdings (Pty) Ltd - A Diversified Investment Holding Company.

In any industry, it is always important to look good to clients and to live up to their expectations. When working with clients you should always try to go above and beyond what they expect, which will help your firm look good. Regarding mergers and acquisitions, impressing clients is key when it comes to selling their businesses. From the onboarding process to the closing of the sale, looking good is essential. There are many ways to look good to a client but focusing on the firm’s professionalism, knowing your client, and building relationships with customers are a few keys ways to look good to your clients.

Professionalism

Looking good to clients starts with a first impression and how professional you appear to a client. A firm handshake, an appropriate suit, and a friendly greeting can help impress a client, but professionalism is ongoing and will continue throughout the process of selling a company.

A few ways to maintain professionalism are:

• Well-rehearsed presentations
• Constant communication
• Proper business etiquette

Clients want to be respected and treated appropriately in a business setting. Clients will expect professionalism, so it is important to go above and beyond their expectations. Providing well-rehearsed presentations about the client’s company, market, and industry will help you stand out against other firms.

Constant communication and updates on the status of the client’s file are key to impressing the client. Clients will be impressed by proper business etiquette how well you can articulate an understanding for their industry and particularly their business structure. 

Know your client

Knowing your client is about more than just understanding what they do and whom they serve. There are many aspects to a business, and clients will be impressed if you take the time to understand the ins and outs of their company.

Businesses are multidimensional and no one knows the business as well as the owner. Before you meet with a client make sure to know some of the important aspects of their businesses. Some key things to research before your initial meeting with a client include:

• Details of services and products provided
• The markets they operate
• Customer review

Understanding and knowing your client starts before the initial meeting in person. Complete your research on the company prior to the meeting, note public information about the markets they operate, and their customers.

Building Relationships

Selling a company can be a very emotional process for business owners and building a relationship with the sellers is key to looking good to clients. Clients want to know that you are taking the time to understand what they are expecting to get out of selling their business. For some this can be monetary, for others it can be retirement or a change in their careers. Regardless of the reason, it is important to take the time to understand what they are looking for and understand those key aspects.

Some crucial ways to build and maintain relationships are

• Always be available
• Be open to listening to concerns and honest with responses
• Be realistic, do not over-promise

Clients want to know they are being taken care of when it comes to selling their businesses. It is important to build a relationship, establish trust, and let your client know you will be available through every step of the process. By building relationships, you will look good to clients and help them feel at ease throughout the mergers and acquisitions process.

When it comes to looking good to clients, there are many ways to be impressive. However, professionalism, knowing your client, and building relationships are fundamental. When you can provide professional materials and a true understanding of their company and industry, you will look good to clients. Diving deeper with your clients and showing an understanding on more than a basic level will set you apart from competitors and impress the clients. Building relationships and maintaining those throughout the process will also impress clients. While there are many ways to look good to clients, showing clients that you are professional, understand their business, and want to build a strong relationship with them will help you look good to clients.

Author
Madison Culberson
Transaction Support Analyst
Benchmark International

T: +1 615 924 8950
E: culberson@benchmarkintl.com

Many first-time buyers acquiring businesses in the United States are unsure of how to structure their offer in terms of a deal to buy the equity of the business (i.e., the stock, membership interests or partnership interests) or the assets of the business. The below FAQs should help point you in the right direction or at least allow you to have a meaningful conversation with your advisors.

Which do sellers view more favorably, stock deals or asset deals?

Typically, a seller’s initial reaction is to prefer a stock deal to an asset deal. They lean this direction because the first thing they have been told is, “Your tax bill will be smaller on a stock deal.” But there are actually a number of other significant considerations and the conventional wisdom on taxation is not always correct. Even still, when all is said and done and sellers are fully educated, they will almost always seek a stock deal as opposed to an asset deal.

How does this decision affect the definition of the “seller”?

In a stock deal, the owner of the business is the seller. He or she is selling her equity in the business. In an asset deal, the company itself is technically the seller. It is selling its assets to you.

Are the implications of securities laws different?

Yes, federal and state securities laws apply to a stock sale but do not typically apply to an asset sale. This benefits the buyer because of Rule 10b-5 issued by the Securities Exchange Commission (SEC) pursuant to the Securities Exchange Act of 1934. This regulation holds sellers responsible not only for material misstatements in the sale of securities but also material omissions in such sales. With asset deals, the default US rule of caveat emptor applies (unless the purchase agreement says otherwise). Buyers therefore gain a bit of extra protection with both civil and criminal penalties when acquiring via stock deal. However, it is important to remember that Rule 10b-5 applies to both the sale and the purchase of securities so the higher standard applies to both parties to the stock transaction.

What about the meat of the deal? Does it change?

Absolutely. In an asset deal, the buyer and seller must agree which specific assets are being acquired and which are not being acquired. Similarly, they must specify which liabilities are assumed by the buyer and which are left behind. In a stock deal, all assets owned by the company and all liabilities owed by the company move along with the sale unless specifically called out in the purchase agreement. We most often see asset deals in situations where the parties have agreed to leave all or almost all the liabilities behind and stock deals where the reverse is true.

What about those tax issues?

This is often the crux of the difference of opinion between buyer and seller. Though the issue can arise in an infinite number of variations, the most common occurs when the seller has used accelerated depreciation under the Internal Revenue Code and an asset deal occurs. In an asset deal, the parties must mutually agree on a purchase price allocation for tax purposes. All purchased assets are either specified items or “goodwill.” After the acquisition, the buyer can depreciate the value assigned to each specific item but not so with the goodwill. Depreciation creates a “tax shield” that results in the business kicking off more cash for the buyer in the years following the acquisition. The higher the percentage of the purchase price allocated to specific items, especially quickly depreciating items, the more appealing the asset deal is to the buyer and its future cash flows. But the IRS does not like buyers to depreciate assets that the seller already depreciated. In such an instance, the IRS would lose (and we all know that can’t happen). So the IRS has something called “recapture tax.” Suppose a seller bought a machine for $100 and depreciated it quickly down to $15 in its tax books. The result over that time was $85 of expenses that resulted in lower taxes. If the buyer and seller then ascribe a value of $100 back to that item, the buyer will—in future years—get to depreciate that item back to $15 again. “Not fair,” says the government. The recapture tax says, essentially, that if they agree to allocate $100 to that item, then the seller has to pay taxes for the “over-depreciation” it took while it owned the machine. So the buyer wants high value on the specified items and low value on the goodwill, a built-in conflict making deals harder to close.

This is but one of many tax issues that, almost always, tends to pit buyer against seller. Generally speaking though, for most circumstances, the tax issues in a stock deal result in significant reduction in the degree to which buyer and seller are diametrically opposed on tax issues.

Is a stock deal sometimes inevitable?

Yes, it is. When the company being sold has a large number of contracts that require the third parties’ consent to assignment, asset deals can be almost impossible to pull off. This is why larger deals are rarely structured as asset deals.

Most contracts include what is called an “assignment clause.” When a business sells its assets and assigns it liabilities to another company, its contracts are “assigned” and the assignment clause must be consulted. These clauses often require the consent of the counterparty prior to any assignment. Asset deals require assignments; stock deals do not. Obtaining the consent of 4,000 clients and five landlords can often push the buyer and seller to a stock deal regardless of any other consideration.

Some contracts also have “change of control clauses” that essentially state that any change of control of one party will be treated as an assignment. Thus, structuring as a stock sale is not a panacea to this consent issue.

Permits and licenses can pose similar restrictions on the parties, pushing them towards a stock deal. Similarly, in an asset deal, employees must be fired and rehired and must be tied into the buyer’s or new company’s benefits plans.

Is an asset deal sometimes inevitable?

Yes, it is. We see this happen when the company being sold has significant pending litigation, problems with its history, poor documentation, or other defects that make the equity interest in the business unmarketable. Though buying substantially all of the assets can lead to successor liability in some circumstances, asset deals provide fairly effective ways to take the desirable aspects of the business and leave the offensive pieces behind.

Which deal structure moves more quickly?

Stock deals tend to move much more quickly than asset deals for a number of reasons. Buyers can rely on the protection of securities laws so diligence tends to be less involved. Fewer third party consents are required. There are fewer tax issues to debate.

Author
Clinton Johnston
Managing Director
Benchmark International

T: +1 813 898 2350
E: Johnston@benchmarkintl.com

I had the opportunity to meet Linda and Frank this week at a networking event. What I heard from Linda was a reoccurring theme, “Frank has been driving me crazy since he retired in October. He needs to find a job.”

As M&A professionals, we often see people who retire from a career and decide that they can only play so much golf and need something to occupy their time. Buying an existing business is often a good solution because you can control the size of the company and have a flexible schedule to still enjoy traveling, golfing, and fishing.

Many businesses start from a passion that allows the owner to monetize one of their loves. For example, a restaurant is often founded by a person that’s passionate about cooking. Given the age of retirees, it’s often hard to start a business from scratch due to the limitation of our great resource, time. However, being able to purchase an existing business will provide the retiree with a continuous income and often allows the retiree to recoup their investment somewhat quicker than a startup.

Often, people fall into their career and then babies come so people stay in a stable career that provides for their family and family’s future. Once couples are empty nesters and have saved a nest egg for retirement, they can leave their stable career and chase their passion. We see retirees purchasing companies that they have an interest in learning but never had the opportunity to explore or know-how to get started. When an established business is purchased, the seller is available to be retained for a training period or as a consultant to help the purchaser learn the ins and outs of the business, beyond the due diligence period.

We often hear ‘use it or lose it.’ Many people are concerned that if they do not use their brain during retirement that they will become less sharp then they were during their prime career days. Retirees are seeking to buy businesses to keep various skills sharp. Whether that’s business, interpersonal, or specialized skills, owning a business will allow you to continue to challenge your mind.

A business is also an investment that can provide a good return depending on your goals. Many people prefer to bet on themselves instead of the stock market. Purchasing a business during retirement might cause a retiree to receive a return on their investment and cash flow for day-to-day needs.

Owning a business in retirement often helps with legacy planning. Many times, the business is a family business and there is a plan to pass the ownership on to the next generation. If this is one of your goals, purchasing a business in retirement might be a great option.

Author
Kendall Stafford
Managing Partner
Benchmark International

T: +1 512 347 2000
E: Stafford@BenchmarkIntl.com

How long after I learn of an opportunity will I be expected to submit an offer?

The timing that the offer is first seen does not really play a role in setting any timing expectations. The more precise question might be, “How long will I have to put in an offer before the opportunity is lost?”  Some opportunities come to market with a fixed timeline leading to a formal auction process. In this case, you would be notified of that deadline and, if you found the teaser early in the process, you would have plenty of time. This is unless you came across it later on that same timeline. In other cases, and what is more often the case for businesses in the lower-middle markets, no timelines are set. A business may be on the market one day and gone the next. There really is no way to make a prediction.

How long does a business spend planning to go to market?

Some sell-side advisors spend months or even years “grooming” their clients for the market. They attempt to ensure all the low-hanging fruit in terms of improvements to profitability is addressed before you see the business. Benchmark International’s approach is different. Our pre-marketing work focuses on getting to know our client’s business and preparing the information you need to make an informed decision rather than guessing what improvements you would like to see and then encouraging our clients to spend money on projects that you may or may not value highly. Our clients work with us for two to three months on average before coming to market. We would like to shorten that time period but our clients are typically owner-operators and, as they say, “They already have a day job.”

After I see a teaser, express interest and sign an NDA, how long should I expect to wait for the next data dump?

The next round of data should come in the form of a Confidential Information Memorandum, also called a private placement memo, a CIM, a PPM, or a “book.” The process of getting your NDA to a client and obtaining the client’s approval to share this information should take about three business days.

After receiving a Confidential Information Memorandum, what is my expected response time for expressing further interest or asking additional questions?

There is no set rule here. Buyers are typically looking at multiple opportunities, comparing one to the other and then prioritizing them. The sooner you reply, the lesser the chance the company has gone off the market and the keener your interest will appear to the seller, so sooner is better than later. Aggressive buyers typically reach back out to us within three business days of sending the CIM and, if we have not heard back within one week, we follow up.

How long should I have to wait to have a call or meeting with an owner?

Setting a date for an initial call or meeting should be almost instantaneous. When that exchange actually happens will depend on the parties’ schedules. Phone calls are typically held within a week of the buyer’s request. Timing face-to-face meetings depends on the distance between the parties, the time of year, and other factors, but is usually accommodated within two weeks of the request.

How long does a first call typically take?

These are generally scheduled for one hour.

How long does a first visit typically take?

This will depend on how much information has been shared prior to the meeting and where the buyer and seller are in the process at the time that the initial meeting occurs. These meetings tend to be much longer than calls, up to four hours, and often involve going to a meal together.

How long after speaking with or visiting with the seller do I have to put in an offer?

Unless a formal process has been put in place and announced, there are no rules here. As mentioned above, companies go off the market and quicker responses convey a stronger interest. It is more important that you have the right amount of information before submitting an offer. You need to be comfortable standing behind the offer, and the seller needs to be comfortable that you understand the business, otherwise the offer isn’t worth the paper its printed on. Unless there is a formal deadline, offers should not be rushed. Take as much time as you need and put forth a detailed offer that hits as many of the seller’s points of interest as possible.

How long does it take to get an offer (or letter of intent) signed?

Absent a formal deadline, we typically see letters of intent (or “LOIs”) go back and forth for about two weeks. Sellers rarely accept a first offer and, even if the terms were acceptable, there are always questions to be addressed and additional details to be added at the request of the seller. The seller should respond to your initial offer in a matter of days, perhaps three to five, but you should budget two to three weeks to get the details ironed out.

How long does it take from signing the LOI to closing?

This is almost always in the buyer’s hands. Working with a well-represented seller can help speed up the process. At Benchmark International for example, we run online data rooms for all of our clients, we hold weekly calls, we shepherd the diligence requests back and forth ensuing nothing falls through the cracks, and we push the seller for timely responses when necessary. As the buyer typically prepares the first draft of the definitive agreements, whether you decide to complete diligence first and then have the attorneys start drafting, or if you do the two simultaneously will be the single largest factor in determining timing. How much due diligence you have performed and how well you control your due-diligence providers and attorney will be the second most significant factor. All that said, we see parties aiming to close deals within 90 days of signing the LOI, though that timing sometimes slips.

I am using debt for the acquisition. What impact will my lender have on timing?

If you handle it well, run your offer by the lender before providing it to the seller, and are not asking them to do something they are uncomfortable with; they should not add time. Unfortunately, many buyers are unable to meet these expectations and the lender often becomes the long pole in the tent in terms of timing. A buyer’s inability to get the debt financing lined up can stretch on for months. These delays are what most often kill deals with our clients. If you have any concerns about timing, the most important step you should take is to get your debt financing relationship(s) in line early in the process— perhaps before you even start looking at acquisition targets—and keep your potential debt provider(s) in the loop as the process progresses, constantly obtaining reassurances from them that the deal you are working on is “fundable.”

Over the years, we’ve collected the questions acquirers most often ask about our relationships with our clients. We hope you will find working with us to be a beneficial experience and invite you to learn a bit more about our relationship with our clients by looking over these most frequently asked questions.

Do you ever represent acquirers? No, we are and always have been a 100% sell-side shop. Many of our team members have significant buy-side experience but we prefer to have a very narrow specialty and we take all our fees from the seller. We have, from time to time, been asked by serial acquirers to search for targets with specific criteria. We are happy to do this and when we do, we do not seek engagement by or fees from the acquirer. Instead, we work to sign up the seller as a client and then bring them to the inquiring potential buyer for a pre-market first look. 

Is the relationship with your client exclusive? Yes, all of our contracts are executed on a sole and exclusive basis. The financial investment we make in each of our clients is far greater than the typical broker in the mid and lower-mid market. The process only works if we work on this basis. For the same reason, we do not co-broker with other sell-side brokers.

How are you compensated? We require a one-time retainer from all clients upon engagement and we have a success fee due upon (and at) closing. The one-time retainer is significant enough to ensure that our client is serious about undertaking the process but not large enough to muddy the waters as to our incentive. For us, the profit is in the success fee. Our success fee is a percentage of the total benefit our client will receive from you as a result of the transaction, subject to a smaller fixed minimum amount. Our contract states that it is to be paid at closing by the acquirer out of the purchase price (on behalf of the seller) on the funds flow memo.

What authority do you have? We never have authority to bind our clients in any manner. We have authority to release the teaser, which they will have previously approved of in writing, as we see fit. Following the execution of a NDA by an acquirer and our client’s written sign off on that NDA and acquirer, we are authorized to release the Confidential Information Memorandum and have wide latitude to discuss anything relevant to a potential transaction.

Are your clients tied to you for a fixed term? No. If one of our clients no longer desires to sell, they can terminate our contract by written notice. Termination is not valid if delivered while engaged in negotiations with an acquirer. In exchange for this right to come off market at any time and to defend the exclusive nature of our engagement, we have tails that we feel are industry standard.

What visibility do your clients have into the exact size of your fee? We will provide a pro forma invoice to our clients at any time. All they need to do is ask. This may be upon presentment of proposed letter of intent (LOI), upon execution of an LOI, upon review of the first draft of the definitive agreements, or even the day before closing. Our contract obligates us to do this and we believe it is the most productive way to handle the issue of fees. We encourage our clients to ask early and often. Our accounts department can typically prepare these within 24 hours of the request and they are, of course, subject to modification if and as the deal develops or changes.

What notification and information rights do you have? Our clients are obligated to keep us informed of their negotiations and provide copies of agreements relevant to the calculation of our success fee for any transaction for which we may be due such a fee.

At Benchmark International, we work exclusively on the sell-side, so we would love to say, “The way to do a re-trade is to never do a re-trade.” However, when you have completed countless deals, there are times when we are tied so closely into those deals that we know the terms of the original offer do not stand up to the target company’s actual position following due diligence. In other words, we will admit when there is a legitimate reason to re-trade a deal term, including the price.

Our experience also tells us that these instances are rare when sellers have been through our process, and there is a right way and wrong way to do it if you want the deal to close. We encourage you to avoid blown deal costs by following these simple steps:

Step 1: Discuss it with us first. Yes, we are going to push back. Yes, we are going to support our client. But we will also be able to keep the deal on track by doing the following:

• In a best-case scenario, clarifying a misconception on your part that moots your need to re-trade
• Giving you a read on how our client will react
• Suggesting the best means of communicating the issue so that the reaction you receive best matches the severity of the actual change
• Providing our client our open and honest view of the change and the reasons for it before he or she has had a day or two to lock themselves into a position that may be based on less than the clearest picture possible
• Delving into our resources to convert what starts as a win-lose scenario to something closer to a win-not-lose-too-much scenario

Step 2: Have your data lined up. Very often we see re-trades supported by vague concepts and no numbers. These cause extra problems. If the amount of the re-trade can come over on the left side of the page with a numerical breakdown of the reasons for the re-trade on the right side of the page, and the seller can see that the two balance one another out—even if just figuratively—we are all in a much better position to get to the closing.

Step 3: Don’t wait. When you find something in diligence that looks like it is building to be the source of a re-trade, don’t save it all up and then dump it on the sell-side at the last minute. Conditioning the recipient of bad news is always the best way to get the most appropriate response to that news.

Step 4: Don’t overreach. Even in our smallest deals, we are not operating in a Turkish bazaar. There is no need to ask for $500,000 when you need $250,000. That type of negotiation works well in one-off trades but not when you are trying to build a relationship that is expected to hit additional bumps before the deal closes and likely needs some level of ongoing trust after closing.

Step 5: Be open to creative solutions. Regardless of how meaningful the problem is and how large a fix you need, your solution may not be the only acceptable one. It may not even be the best one for you.  There are many ways to change a deal to address an unforeseen risk and provide the protection you need to offset that risk. The key to getting the transaction closed is often finding the amount of offset you need using the method of offset the seller can accept.

Benchmark International works hard with its client to avoid the need for re-trades. We collect extensive data on our clients prior to going to market. We run a very process-driven data room and often pre-populate it. We encourage our clients to get in front of disclosing detracting factors to avoid any surprises. We comb through every financial statement and tax return our clients can produce. In some countries, we are able to verify returns against official tax transcripts. Unlike many other brokers, we will even put known issues into our Confidential Information Memorandums. We attempt to place our clients with experienced M&A legal advisors. We understand—and make every effort to ensure our clients understand— that hiding an issue is not going to get them a better deal, may cost them a very good deal, and will never make it through due diligence.

At Benchmark International, we see hundreds of letters of intent (LOI), term sheets, and heads of terms every year. And though the title of the document changes from location to location, we see acquirers making the same mistakes across the globe. These mistakes cause delays, lead to good LOIs not being signed, and lead to LOIs being signed but then resulting in nothing more than blown deal costs (and angry sellers). We would like to offer a little advice from the sell-side about how to make your offers come across in the best possible light.

1. Do not include an automatic extension to the exclusivity period.

When there are no conditions on an extension other than your sole discretion, our clients see that for exactly what it is. Unless either (a) they have some veto right over any extension or (b) it kicks in only if certain material and tangible milestones have been hit, extensions cause our clients to get a bit suspicious of the other terms in the LOI. Its one of the easiest clauses for an M&A novice to understand so if they feel weary of that clause, you can imagine the effect it has on their reading of the more complex sections.

2. Do include a sources and uses of funds table.

Missing the table is problematic for a few reasons. Our clients often have a hard time following the complexity of a structured offer and the table can clear up some things for them. In addition, when the client is rolling over an interest and you are using the target company (or newco) to undertake the acquisition debt, a clear picture of the debt is necessary to ensure the rollover is correctly valued and, more importantly, for us to best explain to our clients the magic of leverage. Our clients tend to be less comfortable with debt than you are. When they learn later in the process that the company will be taking on large amounts of debt, it serves no one's interests for them to feel they have been left out in the dark or that they are suddenly facing a riskier proposition than they thought—even when they are not going to retain any interest in the business.

3. Do not get too specific on the net working capital when the closing date is not yet known.

Our clients' business' have seasonality. Most of them don't have the same working capital in June that they have in October. With a two, three or even four-month window for the closing date, setting the target at the time of LOI is a recipe for disaster. Most acquirers have an adequate enough understanding of our client's business at the time of presenting an LOI to allow them to set the balance sheet line items to be included in the definition. But setting an amount causes extra pains both when trying to get the LOI signed and later if the closing date moves.

4. Put the total purchase price in the first paragraph.

Sellers look for the headline number. Why not put your best foot forward? Starting off with a nice sentence or short paragraph outlining the total benefit to be received by the sellers is a great way to get the momentum rolling for the offer. It is surprising how many acquirers do not put their best foot forward in this way.

5. Avoid being too specific on indemnification and other legal terms.

Sellers like our clients do not want to engage legal counsel at the time your LOI arrives. When an LOI comes in with the baskets, caps, timing limitations of indemnification and the list of the fundamental reps, our clients either (a) feel inclined to engage legal counsel—which slows everything—or (b) later hear from their counsel that they should not have agreed to such terms in the LOI, prior to engaging counsel. These extra details create a lose-lose proposition.

6. Send the offer to the broker first, not the client.

The error rate on sellers reading LOIs in the dark is astronomically high. Let us give your offer a read and come back to you with anything we think our client will misunderstand. As this is such an emotional and important process for sellers like ours, it can be difficult to get them unstuck from a misreading of your offer. It's best to do whatever is possible to get them started in the right frame of mind and we can (and are motivated to) help you ensure that happens. After we have had a chance to give it a once-over with our professional eye and provide some feedback, feel free to send it directly to the seller if that is important to you.

Our seller clients know that we see quite a few offers come through every week, month, and year and they expect us to provide our input on the timeframes that are “market.” As this is a buyer-seller neutral point and a strong set of mutual expectations is productive to achieving a closing, we want to give you an idea as to what is happening on our side of the table.

Nobody is getting deals closed in less than 90 days.

Even well-funded, experienced buyers seem to require 90 to 120 days get from letter of intent (LOI) execution to close in the middle and lower-middle markets. 

A request for more than 120 days is exorbitant.

A third of a year is a long time to be off the market for an owner who is committed to selling their business.When the time comes, there may well be good reason to extend exclusivity but we know that our clients more often than not regret any grant of 120 days or thereabouts. We can work with them to set up specific grounds for extending exclusivity beyond 90 days where a situation warrants it, but blanket grants of 120 days, or even 90 days with a 30-day automatic extension, are something we highly discourage our clients from accepting.

Diligence should start quickly.

We encourage acquirers to use the offer letter to inform the seller about diligence timings, especially when the initial diligence list will be sent and, if possible, when the initial diligence visit will start. All too often, we see LOIs signed followed by a long pause in activity and that drastically alters our clients’ attitudes toward the buyer and the offer. We encourage or clients to have this expectation set at the time of signing and expect that there will not be a pause but rather an aggressive start, even if that start only covers a portion of the scope of the overall diligence effort. When this happens, we see diligence lists arriving within a week of signing and the first onsite (or the next face-to-face meeting) within three weeks of signing.  

First drafts do not wait until the diligence is complete.

We understand that acquirers may not want to incur the cost of engaging counsel based solely on the information in the Confidential Information Memorandum and a meeting or two. But we also understand that waiting two months to engage counsel and get first drafts out does not lead to a high close rate. We all know that drafts can be sent “pending finalization of due diligence.” Our successful deal closings have the first drafts coming out within a month of LOI signing. Our clients know that if they have not seen a draft by then, the deal is not likely to close.  

The seller can really mess up the timeline.

Failure to provide prompt and complete responses to diligence requests, abnormal reservation of disclosure of “sensitive” issues until later in the process, going on vacation, or simply the lack of organized files are all things we have discussed with our clients prior to going to market (and again when the LOIs start to arrive). They know that they can be the problem when it comes to timing. 

But if the seller does not mess up the timing…

Our clients know that time kills all deals. And they know that if they have been prompt and thorough, and the LOI signing date is approaching triple-digit days in the rearview mirror, things are not going well. Our statistics show that few deals die in the first 100 days after signing and few deals close more than 100 days after signing. This is something we share with our clients—both to set their expectations and to motivate them to be prompt and complete. 

Questions should be responded to within three business days.

We instruct our clients that deals require momentum to close. Precisely when they are most exhausted by the process is when they must reply in an even more expedient manner. Being realistic, we feel that the seller owes the buyer responses to every question within three business days, even if the response is, “We are working on it. It’s been a bit difficult to get our hands on that data.” Similarly, we believe the acquirer should respond to the seller’s questions, and send their follow up questions, within three business days. Allowing sellers to feel that anything that has not yielded a follow up within those three days has a “soft close” around it and goes an immeasurable distance in keeping sellers motivated, focused, and responsive.  

It has been very interesting to follow the changes in market norms for indemnification over the last two decades. As due diligence has escalated dramatically, especially in the U.S. lower-mid markets, over that time, indemnification terms have moved in equal measure in the opposite direction. It seems that acquirers believe that an ounce of prevention is worth a pound of cure. While this has significantly increased the time between signing a letter of intent and closing, it has also made the negotiation of the purchase agreements a bit simpler. First-time sellers—always attentive to post-closing liabilities—seem to be much more comfortable with the current market terms for indemnification than they did with those in practice at the turn of the millennium.

While Benchmark International does not provide legal advice to its clients (or to acquirers), we do rely on our viewing of hundreds of purchase agreements per year to offer our seller clients a perspective on what we see as the norms for their market. While this is a moving target, our insights have remained fairly constant for the last three or four years as follows:

• We see indemnification for any item other than a fundamental representation being capped at between 10 and 20% of the non-contingent portion of the purchase price.
• Acquirers are still alternating between both baskets and true deductibles. These are typically agreed at between one and two percent of the non-contingent portion of the purchase price with baskets being at the higher end and deductibles being at the lower end. These de minimis carve-outs are applied to fundamental representations in about half of all deals.
• The obligations for everything but fundamental representations survive for between 12 and 24 months, with 18 months coming on strong as the mode.

• Fundamental representations are almost always capped at the entire purchase price and survive for very long periods such as seven years, until the expiration of the applicable statute of limitations, or indefinitely. This survival period is one deal point for which we would say there is no market norm at the moment.
• The representations classified as fundamental have not changed much over the years: organization, capitalization, authority, no conflict, ownership of assets, brokers, environmental, tax, and ERISA.
• Fraud continues to be treated like the fundamental representations.
• We still see a few acquirers attempting to leave out the provision encapsulating the indemnification as the exclusive remedy. And we still see sellers’ counsel never allowing that to be absent in the final draft. Leaving it out of a first draft has become so rare that it is almost seen as painting outside the lines, poor sportsmanship, or the like by our clients’ counsel.

As we work exclusively in the mid and lower-mid markets, we see many deals succeed, and some wither. In an effort to have more of the former and less of the latter, we would like to share our core philosophies with the belief that helping you understand them will make working with us a more rewarding experience.

1. Time kills all deals.

Prudent and deliberate action are certainly also key aspects of getting deals closed but, in our experience, neither buyers nor sellers are inclined to be under-prudent or lacking deliberateness. Rather, unexplained and avoidable delays tend to stack up between the first meeting and the closing. Each delay shaves off a small percentage from the probability of closing. There are enough legitimate delays in the M&A process. When we see one that can be avoided, we will step in and attempt to get the ball rolling once again.

2. Transparency is the best antiseptic.

3. The emotional must be covered as well as the financial.

This may be somewhat unique to our clients as our process appeals to a certain owner type. As you probably know, we specialize in closely-held and owner-operated businesses. Nowhere is it more true that “every business is a family business.” Our clients have typically had 20- to 30-year relationships with their businesses and often equate the sale process to sending their son or daughter off to college. When we work with acquirers that understand the effects of this fact pattern, we see a much higher level of success. In fact, we have built our teams, our process, and our engagements around it. We will be more than happy to help you deal with this interesting aspect of our clients. Please just ask.

Author
Clinton Johnston
Managing Partner
Benchmark International

T: +1 813 898 2350
E: Johnston@benchmarkcorporate.com

What Is Buy and Build?

When private equity acquires a well-positioned platform company to acquire additional smaller companies, using the developed expertise in a specialized area to grow and increase returns, it is considered a buy-and-build strategy. This strategy is common with private equity firms with shorter holding periods of about three to five years.

Why It Is An Effective Growth Strategy

If a buy-and-build strategy is executed correctly, a great deal of value can be created when smaller companies are combined under the control of a new company.

• This type of acquisition saves time regarding the development of specialized skills or knowledge, allowing for growth and expansion to other markets more quickly and successfully with lower production costs.
• Creating a larger, more attractive company offers a path to exploit the market’s inclination to assign larger companies higher valuations than smaller ones.
• It provides a clear plan when deal multiples are at record levels and there is a need for less traditional strategies.
• Buy-and-build deals generate an average internal rate of return of 31.6% from entry to exit, versus 23.1% for standalone deals.

Getting It Right

The buy-and-build acquisition is not simple to execute. The process demands meticulous planning and due diligence for the strategy to work. The best deals usually employ multiple paths to create value.

• Synergy between the acquirer and the acquired is important to the outcome of the deal. Companies should target existing firms that will be a good fit as a team both tactically and culturally. The human element should always be considered.
• The management team must be an appropriate fit and have experience with these types of transitions.
• There should be a vision in place for where the company will be five years down the road.
• The platform company must be stable enough to endure the process regarding operations, cash flow, and infrastructure (IT integration in particular).
• Sector dynamics should also be considered. Avoid sectors that are dominated by low-cost rivals or mature, stable players. Focus on sectors with many active smaller suppliers and service providers. Consolidation should result in cost savings and improved service.
• While no two deals are the same, there are patterns for getting it right. Those experienced with buy-and-build strategies are more likely to lead to a successful deal.
• It can be difficult to identify private equity firms because of the nature of the way they do business. It helps to have an experienced M&A firm with extensive connections and a proven track record of negotiating successfully with buy-and-build-focused private equity firms.

These reasons are among several as to why it is a sensible decision to enlist the help of an experienced M&A firm such as Benchmark International for your vision for growth. Count on us to help you get your buy-and-build strategy done right.

Maybe you are a lot like Sam. Sam has been working at a job that he doesn’t love, going to work each day and feeling unfulfilled.  Sam would really like to quit and go into business for himself but he has a wife and a child to support.  This leaves him with a big decision to make; should he start a business or buy an existing one?  As Sam does his research, he discovers the many factors that will influence his decision.

Sam, like many of us, has a family to support so most important to him is to have sufficient income to continue supporting his family.  Taking on the risk of possibly not generating any income for several years with a startup is not a realistic option for Sam.  Since starting up is not an option for Sam, buying an existing business will allow him to have the necessary cash flow from day one as he will be taking a salary directly from his business.  In addition, depending on the way he chooses to acquire his new business he will be able to keep investing back into the business so it can continue to grow.  While Sam understands that there will be many headaches and long days because of his new business owners he will be free to be his own boss.  Furthermore, this new business will likely relieve a lot of the financial stress that he currently has as his family’s expenses continues to grow. 

Like most people going into business for themselves, Sam will need to secure financing and/or attract investors to help him get started.  He quickly learns that banks and investors strongly prefer dealing or lending to a business that has a proven track record and strong historic financial performance rather than a higher risk start up business with so many uncertain factors such as high debt, or customer concentrations.  With the right guidance from a reputable M&A firm such as Benchmark International, Sam will be able to find financing to be on his way to fulfilling his dream of business ownership.

Like many young entrepreneurs, Sam is excited and motivated by the idea of growing a business.  He understands that there is a marketplace for businesses he is currently looking for and is much less interested in the grueling legwork and struggle of getting one up and running.  He knows that buying a business will give him an established brand that has been tried and tested along with any patents, copyrights and valuable legal rights that may come with that.  Having acquired a business, rather than starting one, will have be doing the work he is most passionate about from day one.

Sam’s wife Helen is a very active member in their community and their home is usually filled with family and friends. Like many of us, friends and family are very important to Sam and he wants to make sure he will still have time for those things and does not miss out.  Sam is especially enthusiastic about four children’s school activities.  He realizes that by buying an existing business, he will have an established vendor, customer base, goodwill, equipment and suppliers.  Things he would otherwise need to spend countless hours acquiring.  Sam will also have an experienced and trained staff in place ready to go that will know and understand the business so he can take a couple of hours and see his children flourish.  The seller has spent time teaching and training those people and Sam will reap the benefits of that.  From day one, he will have people in place who are able to help run the business and teach him things while he gets settled in.  Sam understands the target business and he knows that with a few tweaks and changes here and there it will be running the way he wants to in no time.  While at the same time being able to spend the evenings at home with his wife and kids. 

Business ownership may seem like a daunting thought but it really should not be that hard.  Sam’s experience shows us some of the things to think about when making such an important life decision.

So, what about you?  Are those advantages important to you as well?  Do you have a unique idea that may be easier to get off the ground by incorporating it into an existing business?  As we move into a time where more and more baby boomers are looking to retire and sell their businesses, the opportunities are endless for budding entrepreneurs.  Your time may be now!

And what happened to Sam you wonder?  Sam did make the decision to purchase an existing store rather than start his own and was very successful in growing it.  In fact, Sam Walton grew his Wal-Mart stores to be the largest retail chain in the United States.  What business will you grow? 

Author
Amy Alonso 
Associate
Benchmark International

T: +1 615 924 8522
E: alonso@benchmarkcorporate.com 

Many individuals or companies feel that the best way to either enter an industry or expand within an industry is through buying a business. While this is often true, it is hard to know where to begin the process of buying a business.

Define your search criteria?

The first step to buying a business is comprise a list of features that you are seeking in a business. Similar to the car buying process. Do you want leather seats, a certain brand, navigation, power windows, etc? Narrowing your search criteria will help save you time, resources, and frustration.

Here’s a few questions you will want to be able to answer as you begin your search:

• What size business are you seeking? This question relates to both revenue and profitability.
• Do you want the owner to remain apart of the business post-closing? If so, for how long?
• What geographical areas do you prefer?
• What industry and sectors are of interest to you? Be as specific as possible. If you are looking to buy a marketing firm, what type of end customers do you prefer? Do you want the business to cater to government customers, healthcare companies, etc?
• What is your budget?

Begin your search

There are many ways to uncover businesses for sale. You can search various websites, reach out to a Mergers and Acquisitions’ (M&A) specialist, or network to try and find deals that have not hit the market yet. Some buyers will approach business owners directly to see if they are interested in selling their business directly to the buyer.

Websites featuring businesses for sale often can be overwhelming. If you search several websites, you may see the same listing on multiple websites.

There are M&A specialists that work with buyers to find businesses for sale and others that work with sellers to find buyers. Some M&A specialists represent both buyers and sellers. If you are working with a specialist that represents both parties in a transaction, you will want to understand the intermediary’s incentives. It is hard to keep interests aligned if there are conflicts between the parties. If you are working with a sell-side M&A specialist, often times they will have exclusive listings meaning that you can only have access to that specific deal through that specialist. Also, a sell-side M&A specialist may take a commitment fee. This will show the seller’s commitment to the sale process.

Some potential buyers build a network to look for opportunities to purchase businesses or build their own database of potential businesses they would like to purchase and begin reaching out to those business owners. While this sounds like an easy process, do not be fooled by the amount of time and resources you will use trying to speak with the business owners and convincing them to complete a deal with you. Typically, business owners that are open to exploring the idea of selling will entertain a conversation but they eventually want to go to market to test the valuation. Often times buyers will get close to the end of a transaction but then the seller will decide not to sale. If you are willing to pay an amount that is acceptable to the seller then they often wonder if there is someone that is willing to pay more and if they have undervalued their business.

Begin to review businesses

Sellers will want a Non-Disclosure Agreement (NDA) in place prior to releasing confidential information. This practice is very typical in the lower mid-market. As a buyer, you will want to have the opportunity to speak directly with the business owner. They will know their business better than anyone, and you will have specific questions that only the business owner will be able to answer. You will also want to visit the business' facility. This visit will tell you a lot about the company, its culture, and what type of liabilities you may want to explore further during the due diligence process. Once you find the perfect business, you will want to move swiftly to the next stage of the purchasing process as there are probably other buyers looking at the same opportunity and you do not want to miss out.

I found the perfect business, now what?

After you find the perfect business, you will need to comprise a valuation for the business. The valuation will be covered in a Letter of Intent (LOI) as well as the structure (how is the valuation going to be paid to the seller) of the offer and other high-level details. In the LOI, you will want to include the seller’s involvement post close, an exclusivity clause allowing you the exclusive right to review the opportunity, the requirements of due diligence along with a timeline, if possible, and the anticipated closing date. A LOI tends to include many more details but above highlights some of the details a seller will want to understand prior to agreeing to move forward.

The LOI is executed. Where do we go from here?

After a LOI is executed, due diligence begins. As the buyer, you want to confirm that what you think you are buying is what you are actually buying. You will want to understand the risk associated with the purchase of the business. You will also want to engage your advisors to provide legal advice for the purchase agreement and tax advice for the structure of the transaction. 

While purchasing a business sounds like a quick and easy process, it can take months, if not a year or two, to make the purchase. There are a lot of factors that you will encounter and unforeseen obstacles that stand in your way. An M&A specialist can help you navigate these obstacles and help you purchase a business within your desired timeframe. Whether you choose to seek to purchase a business on your own or bring in a M&A specialist, we wish you the best of luck with your journey. 

Author:
Kendall Stafford
Managing Partner
Benchmark International

T:  +1 (512) 347 2000 
E: stafford@benchmarkcorporate.com