20 Tips to Managing the M&A Process

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1 20 Tips to Managing the M&A Process February 24, 2016 David Frost

2 Structure, Timeline & Documents NDA(s) LOI (if any) 1 st Drafts Final Agreements Closing Final Payments Preparation & Contact Preliminary Negotiations Agreement Negotiation Consents & Approvals Post Closing Payments (Adjustments) Disclosure Schedules Buyer Due Diligence with Seller Staged Disclosure

3 1. Be Prepared for Time and Effort Talking to advisors, buyer s team, board, investors, employees Due diligence process Compiling data room Requests for additional documents/information Negotiating definitive agreements Preparing disclosure schedule Closing conditions/closing

4 2. Hire Experienced Advisors Hire a financial advisor or investment banker that is experienced in M&A in your industry or sector Confirm that advisor can attract prospective buyers Negotiate terms of the engagement letter Working fees Success fee Termination rights Hire legal counsel that specializes in M&A

5 3. Understand the Market Know how comparable companies are being valued Seller should differentiate itself Why should it be valued higher? Growth opportunities Better technology Service quality

6 4. Understand the Negotiation Process Who has the leverage? Is one party more eager to close? Can bidders be pitted against each other? Involves compromise Deal price vs. nonfinancial terms Deal price vs. indemnification terms

7 5. Consider Transaction Structure Structures Share Purchase Agreement Asset Purchase Agreement Merger/Amalgamation Plan of Arrangement Takeover Bid (exempt or otherwise) Tax Implications Buyers generally prefer asset purchases Sellers generally prefer share purchases

8 6. Appoint an Experienced M&A Negotiator CEO, Board representative, Board committee or major shareholder Avoid antagonistic negotiations Have protocols in place to prevent unauthorized management activity

9 7. Manage Conflicts of Interest Contain the conflict Independent directors should be granted strong decision-making power Document the process Legal and financial advisors to assist

10 8. Act Quickly Risks of a longer process: Deal does not close Terms become more unfavourable One representative should have authority to make fast decisions Seller should promptly respond to due diligence requests

11 9. Maintain Complete Records Common problems: unsigned contracts missing or unsigned Board and shareholder minutes and resolutions incomplete or unsigned employee-related documents Buyer may require rectification as a condition of closing

12 10. Consider Change of Control Provisions Contracts, licenses, leases, governmental permits Consider when to obtain third party consents Buyer may require consents earlier rather than later

13 11. Have a Complete Data Room Online data room should have all key documents including: Corporate structure, cap table, shareholder records Contracts Patents, trademarks Financial statements Employee information Expedites due diligence process Enables seller to prepare the disclosure schedule well in advance

14 12. Maintain Business Operations Do not get distracted by the M&A process A deteriorating business can lead to: Deal falling through Renegotiation of price and terms

15 13. Communicate Corporate Vision Internally and externally Growth prospects Corporate culture Strategic fit

16 14. Have an Adequate NDA Control use of confidential information and manage areas of interest Control and manage sale process Goal is to conclude NDAs efficiently and quickly to enable due diligence process to commence Resist temptation to engage in extensive discussions before NDA is in place

17 15. Create a Competitive Bidding Process May allow seller to: Obtain a higher price Obtain better deal terms Avoid being forced into exclusivity by the bidder

18 16. Negotiate a Letter of Intent Seller has more leverage before it signs an LOI Key Terms: Price (and adjustments) Method of payment Escrow (amount and length) Scope of no shop/exclusivity provisions Confirmation that terms are non-binding (except confidentiality and exclusivity)

19 17. Negotiate a Favourable Acquisition Agreement Price (and adjustments) Escrow (amount and length) Earn-out triggers Representations and warranties (materiality and knowledge qualifiers) Covenants (limited and reasonable) Conditions to closing Indemnification Employee matters (retention/acceleration of options/future incentives)

20 18. Confirm that Disclosure Schedule is Complete Talk to buyer s deal team/counsel before starting Prepare well in advance Make sure it is correct Ensures seller will not breach its representations and warranties in the acquisition agreement

21 19. Be Careful with Earn- Out Provisions Can bridge valuation gap between seller and buyer Important negotiation points: Realistic financial milestones Timeframe Cap Protections to ensure buyer adequately operates business post-closing What if buyer is sold

22 20. Beware of Post-Closing Risks Survival of representations and warranties Financial adjustments (earn-outs, purchase price adjustments) Escrow (amount, holdback period, payout mechanism) Non-compete provisions

23 Questions?

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