Steps for Protecting Business Sale Confidentiality
How Non-Disclosure Agreements and Transaction Advisors Can Save a Business Deal
Selling your business is not like selling a home, where spreading the word to more potential buyers can up the chances of a deal. Confidentiality in a business sale is necessary to protect the sale and maintain business value.
Consider the infamous confidentiality breach during the acquisition of T-Mobile:
In the summer of 2014, French asset manager Vincent Le Stradic boarded the train from London to Paris. Deciding to work on the train, Le Stradic laid bare the details of a $15 billion deal in which the mobile provider Iliad would be taking over T-Mobile.
Unbeknownst to Le Stradic, a competitor from another investment banking firm was quietly watching him work. In the next seat over, Alexandre Zaluski was sending the visible information to his colleagues at UBS with the intention to pitch a deal of their own to the client and take the deal from Le Stradic. The details emerged in 2019 under the litigation of a much larger investigation.
This story has become a warning about the potential consequences of leaked business sales. In this article, you’ll learn more about ways to protect business sale confidentiality, such as non-disclosure agreements, to prevent harmful intentional or unintentional disclosures.
Beware Who You Tell When Selling Your Business
Jane received a call from one of her biggest customers. The customer had been in the process of putting together a large order that Jane thought would be her most important piece of business for the year. When the customer advised that they were not going to proceed with the order, Jane was stunned. When pressed to explain, her valued customer indicated they had learned Jane was selling the business and that they had been told of the potential buyer. The customer did not want to do business with that company, and to avoid any issues, the customer felt it was best to decline ordering the equipment.
Jane learned a very harsh lesson: stakeholders who are aware of, and are impacted by, the potential sale of a business, can negatively affect the sale and create havoc for the owner attempting to sell it for the highest possible value. In Jane’s particular case, she had shared her intention to sell with her key managers, believing it was a good idea that the managers knew what was happening in the company. Jane asked the managers to keep it confidential and thought they would honor her request.
“How do I keep it quiet?” is one of the most important questions asked by an owner who is contemplating putting their business up for sale.
Who is Most Likely to Break Confidentiality?
Individuals who do not understand the business sale process, or those who mistakenly think they are helping you by telling potential buyers, are most likely to breach sale confidentiality.
The most frequent sources for leaks are family and friends. Business matters are routinely discussed in family get-togethers or with friends who are confidantes. Family members and friends are often unaware of the negative repercussions of disclosing the intent to sell.
The use of Twitter and other social media apps makes it even easier to inadvertently slip that the owner is selling the business. If the owner is intent on family and friends knowing about an intended sale, then family and friends must be made aware of the consequences of letting others know.
Lawyers, accountants and professional advisors are not likely to tip their hand unless they have asked permission to do so ahead of time. Maintaining sale confidentiality is a key success factor for their professional success, and they are practiced in advising in confidence.
What is a Transaction Advisor
There are only two ways that your intention to sell your business can become known to anyone else: you and your transaction advisor. Both consider business sale confidentiality as mission critical to the success of a transaction. Both are aware that public knowledge can create uncertainty and decrease business value.
A transaction advisor without a proven process for controlling information is of no value to the owner. The transaction advisor is your key to successfully communicating your intentions to sell to only those who qualify as potential buyers for your business.
Your transaction advisor will introduce you to their process for maintaining confidentiality. Each situation is unique and must be adapted to your particular circumstances. An owner does not need to accept the confidentiality process without demanding changes that minimize the chance of unintended disclosure.
Your transaction advisor will have interaction with your other professional advisors. While not a source of concern for breaching sale confidentiality, care must still be taken to ensure there is no unintended disclosure or talk that goes public. You, as owner, should have prior knowledge of these discussions if not in attendance.
Who Needs to Know and When?
This is the basis for all decisions an owner must make regarding access allowance to business sale information and transaction documents.
There are two sources of leaks: internal and external. Employees working closely with the owner can often sense something is going on. A new advisor, a “blue suit,” is an alert that needs to be addressed.
Internal Disclosure: The Role of the Advisor
When acting as an advisor to business owners, advisors seek to find ways to continue to grow the business. Even when an owner is selling, growing the business remains a priority. Typically, an advisor asks to be introduced to staff as an advisor helping to identify and implement steps to help grow the business. Any issues related to growing the business are relevant in creating the strategy and documentation for selling the business.
4 Ways to Secure Communications with Advisors
There are steps that can be taken to minimize the form of interaction with your advisors. You can:
- Create a separate email address to be used only for communicating with the advisors
- Use a cell phone or separate phone line rather than the office or business line
- Have advisors conduct off-hour or off-site visits
- Restrict staff use or access to the owner’s office (accounting in particular)
Using Employee Non-Disclosure Agreements
To the extent necessary, certain employees can be asked to sign a confidentiality or non-disclosure agreement that requires them to keep any knowledge of a potential sale to themselves. This should be a low-key process intended simply to reinforce the importance of discretion.
External or Third-Party Disclosure
There are three important documents in the transaction process that provide opportunities to maintain business sale confidentiality.
Information sheet (Teaser)
The teaser initiates the process of informing potential acquirers there is a business for sale. The teaser is intended to spark interest and a desire to learn more.
There is no disclosure of the business name or enough specifics about the business to make obvious who the seller might be.
A successful teaser generates a response from an interested party that moves the process to the first stage of disclosure-the non-disclosure agreement.
The teaser is issued by the transaction advisor, usually by email after phone conversation with the potential buyer to advise them of the potential teaser.
Non-disclosure agreement (NDA)
The non-disclosure agreement (NDA) may be issued to an interested party without disclosing the name of the business that is for sale.
The interested party signs the blind NDA, returns it to the transaction advisor for approval, and the owner signs it.
The owner then discloses the company’s name for the first time. This process ensures that only signees to the NDA know the name of the target company. An NDA, however, is often issued after the identity of the target is known by the potential buyer.
The NDA is usually prepared or reviewed by the seller’s attorney to ensure the confidentiality intent of the owner is properly addressed and the terms and conditions of the non-disclosure are enforceable. The transaction advisor informs the potential buyer about the process for moving forward, ensuring that the potential buyer is aware of the communication protocol and their limitations on access to information directly from the seller.
Confidential Information Memorandum (CIM)
Not every sale transaction will involve one, but a CIM commonly provides prospective buyers with sufficient information to generate a non-binding offer.
Typically the CIM, or book, will not include a purchase price for the business, but it will provide the prospective buyer sufficient information to appropriately value the acquisition.
It is extremely important for the CIM to clearly articulate all of the company’s attributes in order to fetch a premium valuation. The CIM process moves only through the transaction advisor to ensure the potential buyer does not contact the seller directly.
If further information is required, it is the responsibility of the transaction advisor to assess that request and provide the information where appropriate. Requests, such as customer lists and information of a proprietary nature, are not available at this stage of the process.
The Due Diligence Process
The risk of disclosing vital information to a buyer is highest subsequent to the receipt and signing of a Letter of Intent. The due diligence phase is when the potential buyer seeks to confirm that the business is in the same state as outlined in the CIM. The potential buyer will review the target’s financial records in detail and will likely wish to visit the business premises, talk to certain staff and speak with customers and suppliers.
Your transaction advisor should have access to, and a process for, providing a digital vault (i.e., electronic data room) for storage and access to documentation required in the due diligence process. This vault is well secured with password access limited to approved parties.
Compartmentalized security clearances are available for different types of information:
- Corporate governance
- Financial statements
- Tax returns
These ensure only those granted approval to the information have access to it. Further limitations can be placed on view-only settings versus the ability to download the information. Each entry into the vault is logged, and communication regarding the entry is passed on to the owner and transaction advisor. Password access for any authorized user can be removed by owner request.
The vault greatly reduces the need to visit the owner’s premises to acquire information. The transaction advisor requests the information early in the transaction process to ensure the information will be available when it is needed. All of this may sound fairly complicated, but there are a number of companies that provide electronic data rooms at competitive prices.
The End Result: A Successful Business Sale
An owner has many things to consider when addressing the need for business sale confidentiality. The best source of information is a transaction advisor. The transaction advisor has dealt with this concern continually in transaction engagements and has had success in ensuring even the most public of companies are sold without prior public knowledge. The process utilized by the transaction advisor will provide peace of mind to the owner if clearly understood and practiced.
[Editors’ Note: To learn more about this and related topics, you may want to attend the following webinars: The M&A Process and Roadmap to Selling a Business or Taking on Outside Investors. This is an updated version of an article originally published on April 26, 2019.]
©All Rights Reserved. July, 2021. DailyDAC TM, LLC d/b/a/ Financial Poise TM