Considerations for Assembling Your Deal Team

Here are several other factors you should consider when assembling your deal team:

Flat Fees

Most professional advisors charge by the hour, while a minority charge a flat fee. Most of those who charge a flat fee are experienced in the process, which is precisely why they charge one – they understand the process enough to be comfortable quoting a flat fee. 

Experience

When building your deal team, experience is the number one thing you should look for. Ask the advisor how many clients they’ve advised in the process of selling or buying a business. Negotiating the sale of a business is a complex undertaking, and by no means should you risk your hard-earned money to pay an advisor to learn on the job. So, when hiring an accountant or attorney, look for experience. Don’t be shy when inquiring about qualifications. Ask how many M&A transactions they’ve worked on in the last three years and their role in each deal. 

The purchase agreement can have significant implications for several years following the closing. In some instances, the liability you may incur can be perpetual, such as in the case of reps and warranties related to environmental issues, the payment of taxes, or for employment-related matters. Just one word in the agreement (e.g., knowledge qualifiers) can make the difference between a million-dollar judgment and no recovery at all. 

Experienced accountants and attorneys will know what’s customary or reasonable and what isn’t. The American Bar Association (ABA) compiles surveys from attorneys in the trenches based on what’s currently considered standard practice, and therefore acceptable, in an industry. For example, the ABA might indicate that 34% of M&A transactions under $10 million in purchase price include an earnout or that the average escrow is for 12% of the purchase price. The ABA’s studies are detailed and contain specifics on every critical element of a purchase agreement. An experienced advisor can spot when the opposing party is making an unreasonable request and will be able to couple your objectives with current standards of reasonableness. A good advisor will tell you when to fight and when to acquiesce. When it comes to M&A, there’s no substitute for experience. 

Role

Ask what role they envision themselves playing in your situation – some advisors prefer to be in the background while others prefer to be on the front line.

Understand the role of your accountant or attorney based on your experience level. If you’ve never sold a business before, be prepared for your advisor to play an instrumental role in the process. On the other hand, seasoned business owners often require less guidance from their professional advisors. 

Your advisors will play significant but different roles in the sale of your business. Your attorney will be instrumental in negotiating the purchase agreement. But it’s your accountant who will take the lead in financial due diligence and examining the financial and tax implications of the purchase agreement, and determining how to allocate the purchase price. 

Risk Profile

It’s important that your team understand the importance of balancing risks vs. rewards. Attorneys and accountants are conservative by nature. Find an advisor whose appetite for risk matches your own. Some advisors are excessively risk averse. Likewise, some business owners are also risk averse. You want an advisor whose risk profile matches your own.

Knowledge of Your Business

Help your advisors understand your business from both an operational and a financial standpoint. Tell your accountant or attorney what your primary concerns are and work with your advisor to meet your needs before burying yourself in legal or financial jargon. Don’t lose sight of your objectives. Once your advisor understands your business and aspirations, you can work together to create package proposals that meet the buyer’s needs while also addressing your business needs.

The number one thing you should look for when hiring a professional advisor is real-world M&A experience.

Pre-Sale Due Diligence

Finally, ask your advisors to conduct pre-sale due diligence before you go to market. Doing so will allow you to identify and resolve potential problems before you begin the sales process. 

Additional Specialists

You may also want to consider hiring a specialist in the following areas:

• Environmental: If your business handles hazardous materials or is subject to environmental regulations, you should consider hiring an environmental consultant.
• Employee Benefits: Retain an expert in employee benefits if you have an employee benefits plan. Consult with experts in this area well in advance of the sale to ensure assets exceed liabilities and that a smooth transition of benefits can occur in the case of other benefits. In most cases, the plans will be terminated. This will mean that, as the seller, you’re obligated to fulfill the termination requirements, and the employees then continue under the buyer’s plan.
• Code Audit: When purchasing a software company, most buyers retain a third party to perform a code audit to ensure the software code is clean and well documented. If you own a software company, or if technology plays a major role in your business, it would be wise to retain a third party to conduct a code audit before you begin the sales process, which will allow you to correct any deficiencies in the code (i.e., spaghetti code) before going to market.
• Commercial Real Estate Agent or Attorney: I recommend hiring a commercial real estate agent if you own the real estate and plan to sell it. The agent can assist with marketing the property for sale or determining an appropriate rental rate.

The Annual Audit

Assemble your professional advisors for an annual meeting to perform an audit of your business. The goal of this audit is to discover problems early on and resolve them before you begin the sales process. As the saying goes, “An ounce of prevention is worth a pound of cure.”

Your advisors are a valuable source of information. This annual meeting is an opportunity to ensure they’re all on the same page and that there are no conflicts among your legal, financial, operational, and other plans. An in-person or virtual group meeting enables you to accomplish this quickly and efficiently. 

A sample agenda might include a review of the following:

• Your operating documents
• New forms of liability your business has assumed
• Any increase in value in your business that prompts the necessary changes, such as increases in insurance or tax planning
• Your capital needs
• Insurance requirements and audit, and a review of existing coverages to ensure these are adequate
• Personal and corporate tax planning
• Estate planning – including an assessment of your net worth and business value and any needed adjustments
• Personal financial planning

Conclusion

Selling a business has become more complicated in recent years. Tools for financing, mitigating risk, and structuring the transaction can be complex but crucial to the sale of your business. Assembling a team of professionals who can give you the best advice specific to your business will help you navigate this complicated field. So, when evaluating advisors and professionals who might help you, understanding their fee structure, their specialty, and what they can bring to the table will help you assemble the most effective deal team to help ensure the sale unfolds as uneventfully as possible.