Managing the Sale Process:
A Users Guide to Surviving the Asset Purchase Agreement Process
- The APA process is going to be a painful, difficult and expensive process. That’s just the way it is!
- The process doesn’t run itself. The principals need to stay in control
- Expect anywhere from 45 to 145 days to complete the process. If you stay in control it will be on the shorter side, if you don’t it will be on the longer side.
- Timelines need to be flexible. It always takes longer than you think it will.
- Hire a good investment banker
- The investment banker earns a big piece of his fee in the APA process. A good investment banker will have assisted with the development of a comprehensive LOI that laid the foundation for the APA
- Hire an experienced and solution-oriented M&A lawyer
- If your lawyer has to be the smartest guy in the room find a new lawyer.
- Personalities matter. Make sure you banker and lawyer understand that going into the deal
- Don’t let the lawyers run the process. They get paid regardless of the outcome. The business people must stay in control of the process
- Don’t start working on the APA until a comprehensive LOI has been executed
- Non-binding LOIs should be viewed by both sides as binding
- Don’t let your lawyer start with a completely one-sided APA template. It will start the process off on a bad note that will be very difficult to recover from
- Franchisor APAs are worse than useless in franchisee to franchisee deals
THE RIGHT MINDSET:
- Positive deal dynamics are critical. Don’t squander goodwill on minor issues
- Once trust between buyer and seller is lost it is nearly impossible to reestablish it.
- The other side has valid arguments
- The low probability risks are often the hardest and the most expensive issues to negotiate
- Everything is negotiable, but does it really need to be.
- Be flexible. You’re not going to win on every issue
- Be willing to trade issues that aren’t that important to you with issues that are.
- If something is really important to the other side you can get a whole lot for it if you can be flexible on that point
- There is a work around for almost everything
- Win on price but lose on terms is a very bad strategy
- The indemnity section is important, but not as important as your lawyer thinks it is.
- Earnest Money Deposits are a waste of time in QSR deals.
- Because of the franchisor approval and financing contingencies, the buyer will be able to walk until the day of close. There is nothing you can really do about that.
- The best way to keep a buyer engaged is to make sure he is spending lots of non-refundable dollars on the deal
- Remember casualties and condemnations are very rare events.
- If a seller wants to make it difficult for you to do an appropriate level of due diligence don’t do the deal
- The APA disclosure schedules are always a time-consuming nightmare
- Start the disclosure schedules early. They are going to take a lot longer than you think
- The disclosure schedules are really important. Be diligent and thoughtful when preparing them
- Good word processing skills are critical. Whichever side has the better word processing skills should have “control” of the document
- Things change. There will be amendments
- If the other side needs to change something, get something reasonable in return.
Watching (and paying for) lawyers fighting over minutiae is never a lot of fun. The best way to minimize the pain is to make sure you have a thorough and robust Letter of Intent in place before you start the APA process and that you:
STAY INVOLVED AND DRIVE THE PROCESS.