As an owner considers a sale of the business, it is critical to identify the goals of the transaction and match those objectives with the most suitable prospective buyer. There are many different kinds of buyers that might be well suited to acquire the business. Buyers are often grouped into two categories: “strategic buyers” and “financial buyers”.
The term strategic buyer is intended to cover any type of purchasing entity that is engaged in an operating business and includes both public and private enterprises. A strategic buyer may be an existing competitor, customer, distributor or another participant in the market place looking to expand its business. The term financial buyer covers those groups of buyers engaged in the business of investing in private companies and are focused on their financial return on investment. Financial buyers include private equity funds, hedge funds, venture capital funds, and family offices. However, not all buyers fit squarely into one category. There are some hybrid buyers that include traditional financial buyers with existing investments in the space in which the target business operates, making these hybrid buyers have some characteristics similar to both financial and strategic buyers.
A business owner should expect strategic and financial buyers to approach the sale transaction in the following different ways:
In early price discussions, a selling business owner should expect to see both financial and strategic buyers submit an indication of interest with a valuation on the business that is tied to a multiple of earnings, often relying upon the trailing twelve month EBITDA of the target business, or free-cash flow of the business. The multiple range proposed by various buyers in calculating their valuation is typically influenced by: the industry in which the business operates; the margins and profitability of the business; cycles and trends of financial performance; and the perceived synergies that are available after the deal closes.
Strategic buyers can justify higher valuation multiples, and therefore higher purchase prices, when they are able to identify areas where the combined business will be more cost effective, efficient, or have greater opportunities in the market place going forward. In the deal negotiation process, strategic buyers often focus early efforts on identifying areas where there are cost savings, whether through reducing labor costs, consolidating operations or gaining advantageous pricing from the combined purchasing power of the consolidated business. Determining the viability of these synergies is critical to the strategic buyers’ diligence process and a fundamental factor in establishing the price the strategic is willing to pay.
Financial buyers are typically focused on evaluating the target business without expecting significant synergies. In determining the price they are willing to pay, financial buyers focus early efforts on evaluating the profitability of a business and engage in a detailed review of the business financial performance, both recent earnings performance and trend changes. Most financial buyers rely upon the existing senior management team to continue to operate the business after closing at the same location and with the same workforce. Without the synergies that a strategic buyer can factor into the valuation process, financial buyers often offer lower multiples on valuation, and therefore a lower purchase price.
As the deal moves from the early stages of negotiating confidentiality agreements, through diligence, contract and to an ultimate closing, whether a buyer is a strategic or a financial will impact how the buyer approaches the stages and how the seller should respond.
As a first step to any deal, the potential buyer will need to sign a non-disclosure agreement (commonly called “NDAs”). It is critical for a seller to protect its valuable business assets, including its customer base, employees, and financial information. However, it is necessary to disclose this information in the sale process to allow prospective buyers to evaluate the business and formulate a position on price. While it is customary to use a consistent form NDA for all potential buyers, if a strategic buyer is engaged in a competitive business, the seller should be very careful in both crafting a tight NDA and in developing a timeline for sharing highly sensitive information. Many prospective buyers will negotiate to cutback and modify the language in the NDA. In these negotiations, it is important to understand the true damage that could result from sharing information with the buyer. A financial buyer typically will pose less of a threat than a strategic buyer. However, it is important to know whether the financial buyer is really a hybrid buyer who has other investments in the industry in which the seller is engaged. A seller should work closely with its advisors to ensure the terms of the NDA provide sufficient protection. Even with a good NDA in place, when dealing with a strategic buyer, the seller should consider staging the delivery of highly sensitive confidential information until a later point in the timeline of the sale process, when it is clear that the prospective strategic buyer is committed to getting a deal closed.
Once the NDAs have been signed and the due diligence process is underway, a seller may find that strategic buyers and financial buyers approach the scope and process of due diligence differently. As noted above in the discussion on valuation, a financial buyer will almost always be initially focused on financial matters and require detailed accounting information to confirm the financial picture presented of the target business and to develop models of projected profitability. A financial buyer typically engages outside accountants who may spend a number of days on site with the target company to conduct the accounting due diligence. While a strategic buyer will also be focused on financial performance of the target, strategics often prioritize due diligence of synergies and cost savings of the combined enterprise.
A seller will need to understand the financial ability of the buyer and the level of commitment by the buyer at the time the purchase agreement is signed. Strategic buyers are often able to represent that they have adequate cash on hand to close the deal at an early stage, while financial buyers will typically only be able to close the deal if they are able to obtain outside third party debt financing. Without adequate protection and assurance that the buyer is a credit-worthy entity, a seller could end up signing a purchase agreement that is effectively a free option for the buyer to acquire the business. Contractual protections when dealing with financial buyers may include a termination fee (called a reverse-break up fee), a guaranty from an affiliated, credit-worthy entity, or the requirement that the financial buyer delivers commitment letters from its third party debt financing sources. It is important for a selling business owner to work closely with its advisors to ensure the purchase agreement properly addresses these concerns.
Further, when a potential buyer requires third party financing to close a transaction, the seller will need to understand the buyer’s realistic timeline to completing the financing process and how it will affect the time table for the overall closing of the sale transaction.
A financial buyer is often more favorably viewed by those sellers who plan to continue working in the business after the closing. Often a strategic buyer will be factoring in reductions in employee headcount, changes in senior management, relocations of the business or other operational changes that reduce costs. As discussed above, these “synergies” are often the basis for allowing the strategic buyer to offer a higher price than its competing financial buyers. However, it is not only cost reductions that can form synergies, as the strategic buyer may also be able to deliver access to a broader customer base or geographic region that was previously unavailable to the target business.
A financial buyer, such as a private equity fund, is often expecting all of the key senior management employees to stay with the business with a time commitment that ties to the time period the financial buyer expects to hold the business. Because most financial buyers have a specific time horizon for their investment and do not intend to own and operate the target business indefinitely, they develop strategies to align managements’ financial rewards with the financial success of the future exit. Financial buyers may require key executives to invest money along side the financial buyer’s investors in the deal to have “skin in the game”. Further, financial buyers commonly establish management equity incentives, in the form of options in a corporate structure or profits interests in a limited liability company structure, to further incentivize management.
As a business owner moves through the sale process, it is important to keep in mind the original goals established for the sale transaction. Understanding the different approaches taken by financial buyers and strategic buyers can help a selling business owner set realistic expectations for each stage of the sale process and ultimately decide on the right partner to meet the overall objectives in the sale.
This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the author’s firm.
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Alexis A. Cooper practices with the law firm of Sidley Austin LLP in the Corporate and Securities group with a focus on Private Equity and Mergers & Acquisitions. She represents clients on M&A and other corporate transactions in the middle-market across a wide range of industries, including consumer products, medical devices, textiles, packaging, juvenile products,…
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