February 14, 2023
In the M&A world, there are few terms as dreaded as the “Re-Trade”. The continued market uncertainty, coupled with increased buyer scrutiny and diligence, likely increases the possibility of ‘re-trades’ for the coming year. However, proactive business owners can mitigate this risk.
Re-trade: But I have an agreement!
The most critical stage of any M&A process is the point at which the seller selects the ultimate buyer / investor by executing a letter of intent (“LOI”) and agrees to provide ‘exclusivity’, prohibiting them from talking to other bidders. While it is each party’s stated intention (not obligation) to close the deal exactly following the terms outlined in the LOI, it is important to note that the LOI, by definition, is non-binding and subject to further due diligence.
A re-trade happens when the buyer lowers the valuation and/or changes the structure. Reactions to the re-trade depend upon one’s perspective:
- Seller’s perspective: “I would never have agreed to sell my business on this new valuation and structure had it been offered in the first place”
- Buyer’s perspective: “I would never have offered that valuation and structure if the Seller had provided me with the information I now have”.
Both sides think they are right…and they may be.
A classic “bait and switch” or a justified change in terms?
Justifiable: There is no such thing as a ‘good surprise.’ In today’s M&A market, the buyer due diligence process is becoming increasingly exhaustive and lengthy. When this detailed and disciplined process reveals something unexpected (a ‘surprise’), buyers will try to use this new information to renegotiate the terms, price and structure. Generally, justifiable ‘surprises’ come from:
- Missed financial performance
- Different assessment of operating risks
- Changing industry dynamics
- Financing contingencies
Bait & Switch: While issues may surface during the diligence process that justify a revised offer, re-trades can also be part of a buyer’s negotiating strategy: give the seller what they want in order to get exclusivity, then trade down to a lower price using ‘new’ information based on their due diligence. This strategy is especially effective with inexperienced and/or over-zealous sellers.
Regardless of strategy, the re-trade usually comes at the worst possible time… right before the closing when there are limited options for the seller.
Best Practices to Protect Against a Re-trade
There are a number of steps sellers should take to help protect against a re-trade. Overall, sellers should be realistic and look at the company through the investor lens.
- Be fully transparent
There should never be a ‘buyer-beware’ mentality as the buyer will always find the bad news (which will inevitably lead to a re-trade). Being fully transparent about both the strengths of the business and its weaknesses is the best possible way to avoid a re-trade. The fact that a weakness exists is not an issue if it is positioned correctly (as an opportunity) and disclosed in advance. Buyers cannot claim a ‘surprise’ in due diligence if they knew about it before they make an offer.
- Conduct a sell-side Quality of Earnings (QoE) report
We always recommend hiring an experienced accounting firm to conduct a QoE report prior to going to market. This exercise will proactively uncover meaningful issues influencing valuation (EBITDA normalizations, margin analyses, net working capital trends, etc.) and reduce the likelihood of future disagreements with the buyer’s QoE findings during the diligence process.
- Understand the buyer
Knowing the motivations and experience of the buyer / investor is critical to predict the possibility of a re-trade. Do they have a history of re-trades or earnouts? Do they know the industry well and have experience investing in competitive companies? Do you trust them?
- Understand the basis of the valuation
Receiving a premium valuation is the dream of all sellers, but it is critical to understand the basis for that valuation. What are the Buyer’s assumptions behind the initial valuation (typically, historical EBITDA, growth rates, profitability, access to customers products / markets or technology)? How is the Buyer going to measure and validate these criteria?
- Financial projections: under promise & over deliver
The most common reason for a re-trade is missing the budgeted financial performance during the exclusive diligence period. If near-term projected numbers are missed, then management loses credibility, valuation can be renegotiated, and often leads to a deeper dive into other due diligence processes.
- Negotiate (heavily) while you have the leverage
Many sellers are so excited about getting a seemingly great valuation for their business that they jump to “yes” too fast, assuming that the hard work is done. While valuation is critical, sellers should also think about other definitions of value that are equally important (transition plans for owners, taking care of employees, integration plans, etc.) It’s critical to negotiate these while the seller has maximum leverage – which is right BEFORE accepting an offer.
What are the Seller’s Options?
Re-trades are dreaded, but they happen. Even with a revised offer, the seller have options:
- Restructure the transaction to maintain overall valuation, such as converting some cash at closing for a contingent payment in the future.
- Address the issue(s) being raised (assuming the issue can be resolved quickly) and re-engage with the buyer after a brief pause.
- Terminate the LOI with the existing buyer and potentially begin discussions with a different bidder.
- Walk away from the transaction all together: This may be a painful reality after the investment of time, money and emotion. However, it may simply be the best course of action if the revised terms of a transaction no longer meet the seller’s objectives and it is unlikely to realize it with other bidders.
Unfortunately, CMG has plenty of experience managing re-trades. We suggest taking a deep breath and take an analytical approach to this emotion filled situation. Sellers should keep their focus on the ‘bigger picture’ and examine if a transaction still meets the objectives that that prompted a transaction in the first place.
About Carter Morse & Goodrich
Located in Southport, Connecticut, Carter Morse & Goodrich is a boutique M&A advisory firm that specializes in representing founder-led and family-held businesses valued between $20 million and $250 million. While CMG provides a full range of investment banking services, our primary focus is representing owners who are pursuing their once-in-a-lifetime M&A transactions. CMG specializes in advising leading companies in niche markets to plan, prepare, execute, and close successful transactions that maximize shareholder value. CMG fully understands and appreciates the unique dynamics of closely-held businesses and the importance of owner legacies. For 35 years, the combination of our hands-on approach, senior banker attention, strategic guidance, seamless transaction execution and extensive network of domestic and international resources has enabled us to become a trusted advisor to hundreds of business owners.
CMG's Broker/Dealer affiliate, Carter Capital Corporation, is a FINRA member firm registered with the SEC and SIPC.