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Creative deal structures and deal terms move to lower middle market

When selling your business, price is not the only important factor you’ll negotiate with a buyer. The deal structure includes a wide range of considerations from transaction type, ownership and payment structures, working capital, assurances, timelines, and more.

What we’re seeing in the market right now is a rise in creative deal structures. These are non-typical solutions that help dealmakers bridge some sort of gap between the buyer and seller. If properly negotiated, these structures can make a lot of sense for both sides, but it’s critical for a seller to have an experienced M&A advisor and transaction attorney on their side to ensure they understand these more complex provisions.

An earnout is, perhaps, the classic example of a creative deal structure. Under these agreements, the seller receives additional payments provided the business hits certain targets down the road. Earnouts can be a great way to bridge valuation gaps, such as when the business is expecting a big performance boost in the near future – and the seller wants to be paid for those as-yet-unrealized gains.

Some creative deal structures are more common in the middle market M&A (transactions with values over $50 million). But as private equity buyers continue to shift into the lower middle market (business values of $2 million to $50 million), they’re bringing deal structures like these with them:

Reps and warranties insurance. When selling your business, typically you’re going to “represent and warrant” certain things about the business (e.g., you’ve provided accurate info, no known legal or customer issues pending). If something turns out to be not wholly accurate, the buyer can come back to you for a certain percentage of the purchase price.

In smaller deals, the seller will simply agree to a guarantee. But as transactions get larger, buyers may ask sellers to put that money in escrow. That money is then tied up for a certain period of time, not earning any returns.

As an alternative to escrow, the deal can include reps and warranties insurance. In this case, the insurance company does their own due diligence and agrees to take on that risk. The advantage for sellers is that they don’t have to hold that money in escrow anymore and shed the risk of covering a reps and warranty claim during the warranty period.

Premiums for reps and warranties insurance often start at around $250,000. Because of the cost and additional diligence required by the insurer, it was only common in larger transactions over $50 million. Now we’re seeing that move down into deals as small as $10 million in enterprise value.

In some cases, buyers are using reps and warranties insurance as a tool to win the deal. If competition is strong (and these days it often is), buyers may offer to pay for reps and warranties insurance. As sellers evaluate multiple offers, they might consider the opportunity to bypass escrow as a factor that tips them in a buyer’s favor.

338(h)(10). In these transactions, the deal is treated as a stock sale from a legal standpoint but as an asset sale from a tax standpoint. From a legal standpoint, this structure can eliminate the need to comply with time consuming and sometimes challenging customer contract “change in control provisions.” For the buyer, that means they can get a step-up in basis and re-depreciate the assets they just acquired.

F reorganization. An F-reorg is a tax efficient method to allow the seller to rollover equity into the new business (i.e. retain a small portion of the business ownership) without paying taxes on the rollover amount.

Without using an F-reorg, for example, the seller might sell 100% of the company and get taxed on that full amount before reinvesting some of their proceeds in the buyer’s new entity.

Deal makers predict an increase in these and other creative deal structures in the year ahead. The pandemic is one factor behind that. Businesses saw their operations disrupted, and that has created some business opportunities and some risks. Alternative deal structures are one way for buyers to mitigate valuation gaps, reduce seller’s taxes, and create win-win agreements between buyers and sellers.

Deal competition and private equity activity are also driving creative structures. According to a Mergermarket survey, private equity respondents indicated they were more likely to consider creative deal structures than corporate dealmakers (75% to 37%).

That may be because private equity firms simply have more experience with these structures. Or it could be that they have a stronger imperative to win deals, and creative structures provide more flexibility to do that. Regardless of the reason, by utilizing an experienced M&A advisor sellers have an opportunity to embrace these more complex deal terms leading to increased enhanced upside.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.com. Exit Strategies Group is a partner in the Cornerstone International Alliance.

Market Pulse Survey – Quarter 3, 2021

Presented by IBBA & M&A Source


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.

 

M&A Advisor Tip: Value = Risk vs. Reward

Buyers value your business based on risk (real or perceived) and future cash flow. Consider potential business risks. What could prevent your company from realizing your forecasted earnings? Think talent, customers, suppliers, competition, cash flow.

Strategize ways to reduce risk in each area, e.g. cross training, outsourcing, succession planning, customer diversification, backup suppliers, etc. The more you do to take away potential pain points, the more attractive your business will be.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.

Exit Strategies Group Announces Successful Sale of AAP Automation

(Englewood, CO) Exit Strategies Group, Inc. is pleased to announce that it recently served as exclusive M&A advisor to the shareholders of AAP Automation on their successful sale to Ohio Transmission Corporation (OTC), a portfolio company of Genstar Capital. OTC is one of the largest industrial distributors and service providers in the United States. AAP Automation will operate under OTC’s Industrial Products Group segment. Financial terms of the transaction were not disclosed.

Founded in 1982 by C Hutton Smith and Robert Noyes, AAP Automation, Inc. is a leading value-added distributor of world-class industrial automation products and provider of custom engineered solutions. Technologies include motion control, sensors, pneumatic valves and actuators, vacuum, air prep, machine framing, safety and robotics. AAP is an authorized distributor for over 50 manufacturers, including many industry leaders.  AAP has three sales offices and two field service locations in Arizona, Colorado and Utah and has 55 employees. AAP’s footprint also reaches into Idaho, Wyoming, and New Mexico.

The Ohio Transmission Corporation Family of Companies has 1,400 associates serving 45 states from over 50 locations. They are a leading technical distributor of highly engineered motion control, pump, finishing, and air compressor products. OTC serves over 15,000 customers across diverse end-markets by developing technical and consultative sales, repair and aftermarket capabilities.

“Exit Strategies Group is delighted to have advised the shareholders of AAP Automation in a structured sale process. We received several strong offers for AAP and OTC prevailed with the best combination of financial terms and strategic and cultural fit,” said Al Statz, President of Exit Strategies Group. “This deal illustrates Exit Strategies’ continued commitment to providing strategic valuation and M&A advisory services to founder and operator owned industrial automation technology companies.”

Exit Strategies Group (ESG) is a California-based provider of strategic merger and acquisition advice/execution and business valuation services. Founded in 2002, with offices in San Francisco and Portland, ESG represents private companies on the sell-side and works with private equity, public and private companies and family offices on the buy-side. Its industry expertise spans all areas of industrial automation products and services and advanced manufacturing. Since inception, ESG has advised on well over 100 M&A transactions. For more information visit www.exitstrategiesgroup.com.

When selling your business is your succession plan

How old are your key employees? This is becoming one of the key issues buyers care about when acquiring a business. It’s not a case of agism – buyers would love for your senior employees to stay. It’s about risk and how soon the business’s pivotal people are going to retire.

Right now, 10,000 Baby Boomers turn 65 each day. In 2020, 3.2 million Boomers left the workforce, and this trend is likely to continue. A survey from the New York Federal Reserve suggests nearly half of Americans are likely to retire before 62. The labor force is aging-out, and analysts predict this “demographic drought” is only going to get worse.

When business owners want to retire, they can no longer count on the buyer to find their replacement. If selling the business is your entire exit plan and succession strategy wrapped in one, you could be risking its value. Many buyers want your next wave of leadership tee’d up and ready to go. Because buyers know they may not be able to find those people on their own.

For example, we were recently working with a machine shop in which the business owner and one engineer were the only people handling sales and estimating. The owner was already halfway out the door, and the engineer planned to stay for only about another year.

They do specialized, one-off and low production run jobs, which means estimating is not something that can be readily standardized. Without either of these two people, sales cannot happen. That’s a critical risk, and it’s not something every buyer is willing to take on.

Here’s a bigger example: Wipfli recently conducted a survey of business owners in the construction industry and found that nearly 90% plan to transition ownership in the next 10 years, and half expect to transition in the next five.

This is an industry facing critical talent shortages. According to the National Center for Construction Education & Research, a third of the construction workforce will retire by 2026. That means a shortage on the jobsite and in the C-suite. Those business owners need to start shoring up their succession plans now if they want to retain business value.

There are a large number of family-owned and privately held businesses out there with owners approaching retirement age, and no one ready to take over. The M&A market is booming, but those leadership gaps are keeping some business owners from maximizing their value or even being able to sell their company during these great times.

Now more than ever, leadership and succession planning can protect your business value. However, if you simply don’t have the energy or expertise to add that to your to-do list, there is another option that can help get your business sold at top value: a multi-year transition period.

There are all kinds of ways to structure a deal for owners who intend to stay on – consulting or employment contracts, equity positions, performance incentives. It can be a great way to alleviate the pressures of ownership while taking advantage of growth opportunities using your new partner’s resources.

Buyers want to see a strong management team in place. If you don’t have that, an extended transition gives the buyer assurances that the business can continue to operate as-is for a set period of time. It also gives them a long-lead time to find and cultivate new leadership.

If you’re thinking about exiting in the next five years, talk to your advisors about ramping up your succession plans. As part of those conversations, consult with an M&A advisor and find out all your options for exit – including ways to incentivize key employees with equity positions and how to protect value when you don’t have a successor in place.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.

M&A Advisor Tip: The Case of the Missing Successor

Businesses are facing talent shortages at all levels – at the front lines and in the C-suite. In some industries, like construction, talent issues can complicate exit plans. At some point, there may not be enough leaders left to take over for all the owners who want to exit.

Now more than ever, succession planning can protect your business value. Buyers are looking for companies with a strong management team ready to lead.

If you’re thinking about exiting in the next five years, talk to us about your options – including ways to incentivize key employees and how to protect value when you don’t have a successor in place.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.

How 100 minus 90 equals 20

Here’s a story of how 100 – 90 = 20. We recently represented some owners who had lots of options when it came to selling their business. They had a high demand manufacturing operation, and buyers wanted in – offering everything from minority or majority investments to full exit options.

At first, the sellers thought they wanted a full exit, all cash at close. If they were going to give up control, they figured it was best to cash out. But as they continued to talk with potential buyers and partners, they began to consider a majority recapitalization.

In a majority recap, the owners sell a majority interest to investors who provide a cash infusion. The sellers maintain a meaningful minority stake in the business and, typically, continue to manage the “recapitalized” operation.

In this transaction, the sellers got 90% of company value as cash at close, rolling over just 10% of their proceeds into the new company. But because of the debt structure on the new entity, that 10% actually translated into a 20% ownership stake.

A typical model for investment buyers like private equity firms or family offices is to put roughly 50% debt on the new company. This allows them to leverage their equity and generate a better return. Through that debt arrangement, the value of the sellers’ rollover essentially doubled to 20%.

Majority recaps are a way for an owner to diversify their net worth while also getting a strong financial partner who will help grow the business. Typically, these transactions are structured so that the seller (aka the new minority owner) holds no personal guarantees on the debt.

So worst case scenario, if the company goes totally south, they’d only lose that 10%. No one could go after the 90% they already took out of the business. It’s like the seller gets to take their chips off the table and play with the “casino’s money”.

Value today

Business valuations are strong today. Market conditions are such that there are a lot of well-funded buyers out there looking for opportunities. We’re in a seller’s market and people are seeing values trending at or above previous benchmarks in their industry.

What that means is that the 90% cash at close our sellers took in this deal was probably worth as much or more than a 100% sale would have been worth a few years ago.

Value tomorrow

As we say in M&A, majority recaps provide the seller with a “second bite of the apple.” That second bite typically occurs four to seven years after the initial recap.

After a period of investment and growth, the majority and minority owners agree to liquidate value (i.e., “re-sell” the business). If performance has been good, the owner’s minority shares could be worth similar and sometimes more than they received in the original transaction, depending on how much equity they roll over.

Gain or give

For some sellers, that extra minority stake in the business is really bonus money. We sometimes see sellers use deals like this as a way to transition ownership to their children or their management team. (Note: Roll over equity could be 10%–49%).

It’s a way to provide people with a meaningful ownership stake and opportunity for growth – without risking their own financial future in the process.

Control issues

When considering a majority recap, understand the role your new partners will want you to play in the business. Sellers think, “I’ll be a minority owner and I won’t have control anymore.” While technically true, it’s not the reality of most relationships.

Financial buyers (i.e., investors) are not looking to come in and take over your business – not if they can help it. These buyers prefer companies with strong management teams who have a vision for the future. They want to support the team that will grow the business – not control them.

The takeaway here is that you have options when selling your business – lots of options. Sell and exit right away, sell and stay, minority stake, majority stake, control, consult, gift, succession plan. It’s all on the table in today’s M&A market.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.

M&A Advisor Tip: Make contracts assignable

One key factor that significantly impacts the value of any contract is whether it’s assignable.

Don’t put yourself in a position of negotiating assignability at time of sale. It eliminates confidentiality and opens the door for customers to highjack your deal. Knowing your company is for sale—and that the sale is dependent on their contract—shrewd customers will ask for lower prices or more favorable terms, knowing you’ll likely agree to anything reasonable. You and your buyer both lose.

Not all industries lend themselves to contracts. Secure them if you can and work with your attorney so you can transition those agreements to a new owner…without asking customer permission first.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.

 

Entrepreneurs really do think of business as their baby

Many business owners say selling their business feels like giving a child up for adoption. As it turns out, that’s not just a metaphor. Research shows entrepreneurs really do think of their business as a kid.

Researchers found parallel brain activity between owners thinking about their business and parents thinking about their kids. In either case, similar areas of the brain lit up, including areas associated with parenting, pleasant sensations, and rewards.

Researchers say the phenomenon provides a deeper understanding of “entrepreneurial bonding.” I say it explains why selling your business can be such an emotional rollercoaster. As owners exit their business, they’re struggling with issues like these:

Letting go

Many business owners feel like their identity is wrapped up in their business. Some can’t believe the business can thrive without them. Others don’t know who they’d be without the business.

Proud Parent Syndrome™

In the same way parents can be blind to their children’s faults, they may struggle to see their company’s weakness. Some owners are unwilling to hear the business is worth less than they think it is.

Sleepless nights

As some point in every M&A negotiation, you’re going to lie awake at night wondering if you’re doing the right thing. Are you getting enough value for your business? Is the buyer a good fit?

Any parent knows what it’s like to lie awake in the middle of the night worrying. When selling, business owners can help avoid sleepless nights by working with an M&A advisor to put their business on the open market without an asking price. When you bring multiple buyers to the table in an auction-like environment, you know you’re getting the best the market can bear.

Legacy over money

When sellers have multiple options to choose from, they sometimes choose a buyer for culture fit over money. They may accept a lower price to work with a buyer who’s going to mesh with their team and keep the business local.

It’s not unlike parents who want to give their kids the best and are willing to sacrifice themselves to make that happen. At the end of the day, when selling your business, it’s never just business. It’s very, very personal.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.

M&A Advisor Tip: Don’t sell if not ‘In Like’ with business partner

We were managing a sale and had a strong offer on the table. But as we did our research, we found out the buyer had just parted ways with another business and hadn’t left on good terms. And we learned he didn’t treat employees the way our client would want.

Even though the offer made financial sense, our client decided to pass. The buyer was upset, but at the end of the day we did him a service. Had he purchased the business, the lead employees would probably have quit, and performance would have declined.

Maybe 20% of the time our client will take less money because they like a certain buyer better. Money is a big piece of any deal, but legacy and culture issues can override a financial decision. The heart wins in the end.


For advice on exit planning or selling a business, contact Al Statz, CEO of Exit Strategies Group, Inc., at alstatz@exitstrategiesgroup.comExit Strategies Group is a partner in the Cornerstone International Alliance.