Protect your team from getting poached. An acquirer is about to learn a lot about the company and the team, and in some cases they may conclude it’s cheaper to hire some of the key team members as opposed to paying a premium for the whole company. Make sure your NDA or LOI includes a provision that the acquirer cannot hire any of your current employees now or in the future.
Your team has to stay quiet. Make all employees who know about the deal sign confidentiality agreements that they will not tell anyone about any M&A. Your current employees are often friends with former employees, and all it takes is an attorney working on contingency and a frivolous claim from a former employee (wrongful termination, sexual harassment, age discrimination, etc) to put you in a position where you’re forced to settle a lawsuit before close. You can bet the acquirer won’t allow the lawsuit to remain outstanding, even if it’s an asset purchase, and insurance will drag their feet too slowly for EPL insurance to cover you before close.
Make sure there is a release date. It’s not uncommon for the acquirer to have a breakup fee should you decide to sell to someone else. This is typical, but make sure there is a release date that is reasonable. You want the release date to be short enough so that should the deal fall apart, you have cash to pursue other options. If you’re not profitable, an unscrupulous acquirer will drag you out until you’re out of cash then change the deal. You’ll be out of cash to pursue other options, and that’s their plan.
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