Finalizing the sale of your business is an exciting but complex process. After successfully navigating due diligence and finalizing terms with the buyer, several key legal considerations must be addressed to ensure the sale proceeds smoothly and your interests are protected. This article covers essential legal aspects of finalizing the sale, from understanding the purchase […]
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Understanding The Letter of Intent in the Sale of Your Business
By
Don Woodard III & Alex Sims
A Letter of Intent (LOI) is a critical milestone in selling your business. It outlines the preliminary terms of the proposed deal and provides a framework for moving forward to the due diligence phase. While an LOI is typically non-binding, it signals a serious level of interest from the buyer and serves as a foundation for final negotiations. In this article, we will explore the key components of an LOI, its role in the sale process, and how to evaluate and respond to it effectively.
What is a Letter of Intent (LOI)?
An LOI is a document that outlines the buyer’s intent to purchase your business and sets forth the preliminary terms of the proposed transaction. While the LOI is not a legally binding agreement to purchase, it does establish the major deal terms and guides the next steps in the process.
The LOI typically addresses essential aspects of the transaction, such as the purchase price, deal structure, and key contingencies. It also defines the expectations for due diligence, sets the timeline for the sale process, and may include binding provisions like exclusivity or confidentiality.
Key Components of a Letter of Intent
An LOI typically contains several key components, each addressing different aspects of the proposed transaction. Understanding these elements will help you evaluate the LOI and ensure it aligns with your goals.
1. Purchase Price and Deal Structure
The LOI will specify the proposed purchase price and deal structure, which can include:
- All-Cash Deal: The buyer pays the full purchase price in cash at closing.
- Seller Financing: Part of the purchase price is paid over time, with the seller acting as the lender.
- Earn-Out: A portion of the purchase price is contingent on the business’s future performance.
- Cash-Stock Transaction: Part of the payment is in cash, and part is in the buyer’s company stock.
The proposed price and structure should align with your financial goals and risk tolerance. If the LOI proposes a structure that differs from your preferred arrangement, consider whether the total value and terms still meet your objectives.
2. Terms of Payment
The LOI will outline how and when payments will be made. This includes details about:
- Initial Payment: The upfront amount paid at closing.
- Deferred Payments: Any installments or seller financing to be paid over time.
- Contingent Payments: Additional payments tied to specific performance metrics such as revenue targets or EBITDA milestones. These are often referred to as earn-outs.
Evaluate whether the payment terms provide the necessary amount of liquidity and security; assess the risks associated with deferred or contingent payments.
3. Due Diligence Process
The LOI will detail the scope, timing, and access required for diligence. Due diligence allows the buyer to verify the business’s financial, legal, and operational details before finalizing the transaction.
Key Elements of Due Diligence:
- Scope: The buyer will request access to financial statements, legal documents, operational records, and other confidential information.
- Timing: The LOI typically specifies a time frame for completing due diligence, often 30 to 90 days.
- Access: During due diligence, the seller must provide reasonable access to documents, management teams, and facilities.
Ensuring the proposed due diligence timeline is realistic and allows sufficient time to gather and provide the requested information is essential.
4. Exclusivity Clause
Many LOIs include an exclusivity clause, also known as a “no-shop” provision, which restricts the seller from negotiating with other potential buyers for a specified period.
The typical exclusivity period is 30 to 90 days, giving the buyer time to conduct due diligence and finalize the deal. This exclusivity demonstrates your commitment to the buyer and proposed transaction by limiting your ability to entertain other offers during the stated period.
Exclusivity can be advantageous if you’re confident in the buyer’s ability to close the deal, but be cautious about committing to a lengthy exclusivity period without clear assurances of progress.
5. Contingencies
Contingencies are conditions that must be satisfied for the deal to close. Common contingencies in an LOI include:
- Financing Contingency: The buyer’s ability to secure financing for the transaction.
- Regulatory Approvals: Any necessary regulatory approvals that must be obtained before closing.
- Satisfactory Due Diligence: The buyer’s right to withdraw if due diligence uncovers significant issues.
Review the contingencies carefully and assess their impact on the likelihood of closing the deal. The fewer contingencies, the stronger the LOI, but ensure that any necessary conditions to protect your interests are included.
6. Confidentiality and Non-Disclosure
The LOI may contain provisions to protect the confidentiality of sensitive information shared during diligence. This includes reaffirming existing non-disclosure agreements (NDAs) and outlining new confidentiality requirements.
Ensure that the confidentiality terms protect your business’s proprietary information and confirm that the buyer cannot use confidential information for purposes other than evaluating the acquisition.
Evaluating an LOI
When you receive an LOI, it’s important to evaluate it carefully to ensure it aligns with your goals and priorities. Here’s how to approach the evaluation process:
Assess Deal Terms
Review the proposed purchase price, deal structure, payment terms, and contingencies to determine whether they meet your objectives. Pay special attention to the payment structure, which can significantly impact your financial outcome.
Questions to Ask:
- Does the proposed price meet your valuation expectations?
- Are the payment terms aligned with your liquidity needs and risk tolerance?
- Are the deal structure and contingencies acceptable?
2. Consider the Buyer’s Credibility
Evaluate the buyer’s credibility, financial capacity, and track record. It’s crucial to assess whether they have the resources and commitment to close the deal. Key factors here include financial strength (ability to pay), reputation in the industry, and previous acquisition outcomes.
A credible buyer with a strong track record can increase the likelihood of a successful transaction.
3. Seek Professional Advice
Before responding to an LOI, consult with your M&A advisor, attorney, and accountant. Their expertise can help you identify potential red flags, negotiate better terms, and ensure the LOI aligns with your objectives.
Key Actions:
- Ask your attorney to review legal provisions, such as confidentiality, exclusivity, and contingencies.
- Have your accountant analyze financial aspects, including payment terms, earn-outs, and tax implications.
- Work with your M&A advisor to refine the deal terms and negotiate with the buyer.
Responding to an LOI
Once you’ve evaluated the LOI, you’ll need to decide whether to accept, reject, or propose revisions. Here’s how to approach each option:
Accepting the LOI
If the terms align with your objectives and you’re confident in the buyer’s ability to close the deal, you can accept the LOI and move forward to the due diligence phase. This acceptance typically initiates exclusivity and the formal due diligence process.
Proposing Revisions
If you’re generally satisfied with the LOI but want to modify certain terms, propose revisions. Common areas for negotiation include the purchase price, deal structure, payment terms, and the length of the exclusivity period.
Rejecting the LOI
If the LOI does not meet your objectives or the buyer’s credibility is questioned, you may reject it. Provide constructive feedback to the buyer to keep the possibility of future negotiations open.
Conclusion
An LOI is a significant step in selling your business, setting the stage for due diligence and final negotiations. By understanding the key components, evaluating terms carefully, and consulting with advisors, you can ensure that the LOI aligns with your goals and lays the groundwork for a successful transaction.
In the next article, we’ll dive into the due diligence process and how to prepare your business for this rigorous phase of the transaction.
Next Steps
- Explore the Western Perspective page for more articles like this.
- Explore the Western Testimonials page for stories of business owners Western has worked with.
- For more information on how to explore selling your company, visit https://western-companies.com/sell-side-ma/ or contact Western’s Chief Commercial Officer Rick Groesch at rick@western-companies.com.
Additional Reading
- Marketing Your Business Confidentially
- Conducting Buyer Meetings & Presentations
- Tips for Negotiating During an M&A Transaction