Covid has led to quite a bit of M&A activity amongst the difficulties of trading. I know several ‘baby boomers’ who have just packed up and left. A number have sold businesses they previously intended to continue for a while, and leave ongoing entities to family, and other shareholders.
Several have sold with an earnout period and discovered too late that there were things in the fine print that tripped them up and reduced the payout to next to nothing.
Poor planning and advice, but most importantly, lack of attention to the implications of the financial detail in the agreements.
Following are a number of the common pitfalls you should be aware of.
However, first and foremost, you must recognise that a payout period is really just a transfer of risk from the buyer to the seller. The degree of this transfer is dependent on the conditions in the contract and actions taken by the buyer post transaction.
Earnout revenue targets.
These come in many forms, often broken into categories.
- Many purchases are made for the sole reason of gaining access to the seller’s customer list. In this case, the seller is kept on to assure those customers that it is business as usual despite the change in ownership. Many things out of the control of the seller can impact on the attitudes of the customers, and often a change of ownership is just the catalyst customers needed to look around, and do an assessment of the levels of value being delivered. This usually results in revenue being lost.
- A buyer may cut the sales and marketing expenditure impacting on sales, a decision out of the control of the seller, but potentially impacting on the earnout numbers.
- A buyer often justifies some of the benefit of a purchase in the ‘back office’ economies they appear to bring. These projected savings can be the result of over optimistic projections around available savings made to fit the guidelines of the purchaser. They can have the impact of reductions in the level and acceptability of the service provided to customers. These can impact revenue and payout numbers while being out of the control of the seller.
- Post transaction, sellers often lack the drive and commitment they had prior to the sale, despite the earnout terms.
EBIT targets
EBIT targets are even more ‘manageable’ than revenue targets by a buyer. Being at the bottom of the P&L offers opportunity to load up expense captions from Cost of Goods Sold through trading expenses and fixed costs in all sorts of ways. This will be detrimental to the seller’s payout at the end of the period. Human nature being what it is, there is little motivation for the buyer to maximise the payout to the seller, and conversely, many reasons to take a ‘hit’ in the first periods of ownership that also serve to reduce the payout. Just a few of the many examples I have seen:
- IT integration costs, often the basis of M&A justification blow out way beyond expectations.
- One off costs associated with staff redundancies can cost a lot of money. Often there are assurances in place about staff, but who needs two of everything post acquisition, so job losses are frequent and often deep, creating unplanned costs.
- Changes in accounting practices of the acquired business, for example the valuation of inventory that is applied to the COGS, and unanticipated write-offs of excess inventory, can impact substantially on the payout numbers.
- Loading up advertising leading up to the end of the buyout period can damage short term EBIT, but benefit the long-term position of the business, post the buyout date.
One way of at least mitigating the potential disagreements and decisions taken outside the parameters of the agreement by the buyer to reduce the payout, is to base the payout numbers on free cash flow. The ways this can be manipulated are easier to define and agree pre-acquisition such that the seller is protected. The buyer still has the ability to make the changes necessary to integrate or take over the business and reshape it. Free cash flow is less complicated than agreeing what a post-acquisition ‘normalised’ P&L would look like, as the variables are reduced, and thus it becomes easier to make transparent and enforceable arrangements.
For many owners of an SME, the value tied up in the business is their superannuation. It makes sense to be very careful, as it is probably the case that the buyer has way more experience with these types of transaction than you.
Header cartoon credit: Scott Adams and Dilbert
