The danger in any deal is that once the commercial terms are agreed, the essentials of getting the deal over the line are merely seen as a box-ticking exercise. In reality the closing weeks of a deal are the most high-pressured, most expensive for both parties in terms of professional fees, most likely to be the period where prices are chipped and where the business’s most commercially sensitive information is released.
For the seller there is everything to lose. Once the Heads of Terms are signed, the power in negotiations transfers to the buyer. In most deals, the buyer will insist on a period of exclusivity, essentially locking out any other bidder before they start spending money on third party professional advisers. If the deal doesn't go to plan then there is always a risk when revisiting unsuccessful bidders that the business will seem like 'tarnished' goods.
In our experience, we believe there are a number of things you can do to avoid the common pitfalls that cause a deal to fall over in the final stages and successfully close the deal:
- Make sure you’ve selected your preferred party well. That doesn’t always mean choosing the highest offer, some consideration should be put into who is the most likely to get to the end quickly. Is there a good cultural fit? Have they bought before? Is their funding in place? Offers which appear to be too good to be true are often just that.
- From a seller perspective, keep the momentum up -time is your enemy. Once you have granted exclusivity, competitive tension reduces; however, it is still crucial to keep momentum in the process.
- Make provisions for the added workload. Make sure that the business and the team have enough capacity to respond to questions and review legal documents. If they don’t, bring in help.
- Ensure the buyer starts spending fast. This ensures that they have some real cost implications to consider if they try to change the deal terms.
- Packaging, presentation and negotiation disciplines still apply. It is easy to forget them when the demands of due diligence and legal are at their highest. Don’t fritter away good news, carefully package bad news and make sure your information is consistently and clearly presented.
- Trading, trading, and trading. During the closing stages of a deal, monthly trading and pipeline results are under scrutiny. If a business performs well during this period, then it is easy to overcome most problems that may come out in the due diligence and legal processes. If trading goes off track, it significantly weakens your position and creates problems for the buyer, who will have a board, a bank or a private equity house to justify the deal to.