What aspect of a deal is critical to the success of an acquisition? While many in the banking industry may point to features like pricing and culture, which are certainly important, the devil is in the details. How do you protect your institution if the other party walks away from the deal? Will you have the personnel in place to ensure a successful transition? These six areas indicate where boards and management teams of buyers and sellers will want to focus their initial attention.
1. A detailed letter of intent really helps.
Putting the time in on the front-end to negotiate a detailed letter of intent (LOI) is in the best interest of buyers and sellers. The LOI is a preliminary document, and it is best to resolve any important issues at this stage. If a seller insists on a term that a buyer cannot accept, it is far better to know that before time is wasted and significant expenses are incurred while negotiating a definitive agreement. If the only substantive term in an LOI is the purchase price, then all of the other issues must be resolved among lawyers negotiating the definitive agreement.
2. Do not overlook the importance of due diligence.
The representations made in a definitive agreement supplement—but do not replace—each party’s due diligence investigation. Some important facts about a seller will fall outside the scope of the representations made in the definitive agreement. For example, the seller will disclose any actual and potential litigation against itself, but is not required to reveal litigation against its customers. If the seller’s biggest customer is facing a sizable judgment that could negatively affect its ability to repay its loans, a buyer will have to conduct detailed due diligence to uncover this fact. Further, due diligence is not just for buyers. The seller needs to critically examine the buyer if shareholders are taking the buyer’s stock in the transaction.
3. Be thoughtful about drop dead dates.
A drop dead date is the date on which a deal must close before either party can terminate the definitive agreement without incurring a penalty. Calculating the correct drop dead date is more art than science when balancing the number of actions that must be taken pre-closing—especially regulatory and shareholder approval—with the parties’ desire to get the deal closed as soon as possible. At the same time, an agreement with a short time period between signing and the drop dead date encourages the parties to take the necessary pre-closing actions expeditiously. Striking the proper balance between these two competing factors is key. In the event of a contested application, the time required to receive regulatory approval will be at least twice as long as expected.
4. Be prepared to negotiate termination and related fees.
Termination fees, which are paid by a seller to the buyer if the seller accepts an unsolicited superior proposal from a third party, are common, but the amount of the fee, and the triggers for paying it, are frequently negotiated. Expense reimbursement provisions payable to the nonterminating party are perhaps equally common, in terms of prevalence and contention of the amount. Far less common are termination fees to be paid by the buyer to the seller if the buyer terminates the transaction. These reverse termination fees are generally resisted but can be appropriate in certain circumstances, such as situations where the buyer must obtain shareholder approval for the transaction.
5. Consider the treatment of critical employees.
Buying a bank is obviously more than buying loans and deposits. Integrating the seller’s employees is critical to a successful transaction. Buyers should consider establishing a retention bonus pool to ensure that critical employees remain with the combined enterprise after the transaction (and at least through conversion). A critical employee may not be obvious—frequently they are the unsung backroom employees who keep things running smoothly—and doing right by them will help ensure a successful integration.
6. Be aware of board dynamics.
It’s relatively common for the CEO and CFO to negotiate the sale of their bank and for the deal to include a meaningful pay package for the two of them. The deal is presented to the board and, right or wrong, the board is highly skeptical of the agreement that the executives cut. In this instance, the board’s advisers can help the directors clearly assess the merits of the transaction without the distraction of potentially questionable motivations.