Eric Pritchard is a partner in Kleinbard Bell & Brecker LLP, Philadelphia. The firm focuses on acquisition and succession strategies.
In the electronic security industry, many companies grow by acquiring accounts. Here are some key deal documents:
1. Broker’s Agreement Not every buyer uses a broker to find sellers. And not every seller uses a broker to find the best buyer. Those who do, however, know that the right broker can be invaluable in getting the best possible deal. A broker’s agreement is not a “shared” document executed by both parties. It’s an agreement between one of parties and the broker, executed before the deal and details the broker’s services, time limitations on the relationship and payment the broker may receive on closing.
2. Non-Disclosure Agreement Likely the first document buyer and seller sign, an NDA requires the parties to maintain the confidentiality of exchanged information and is crucial to the seller—the party disclosing confidential customer, financial and sales information. An effective NDA must contain all of the necessary provisions or it will be of little or no use. While these agreements generally follow a standard form, they are not mere boilerplates. Sellers should get their counsel to prepare the NDA. Otherwise, it could be the fox guarding the hen house.
3. Letter of Intent Often misunderstood, LOIs detail deal terms. Usually prepared by the buyer, sellers often sign LOIs without asking counsel for review, believing an LOI to be non-binding. This classic mistake can have significant consequences. While the LOI permits the buyer to walk away based on the results of due diligence, LOIs generally require the seller to close the deal under the stated terms. Seller’s counsel also will have a difficult time negotiating many protections once the terms are reduced to writing in the LOI. Buyers also should take LOIs seriously. An inadequately drafted LOI, alone or in combination with the circumstances surrounding a proposed acquisition, may obligate the buyer to close despite dissatisfaction with due diligence. Courts have enforced LOIs against reluctant buyers, awarding damages to disappointed sellers.
4. Asset Purchase Agreement The primary, negotiated document in any asset deal, the APA memorializes all of the terms and conditions. Typically, an APA has several important and inter-related sections:
Guaranty and Purchase Price includes the crucial and much-negotiated definition of qualified recurring monthly revenue, as well as parameters of any post-closing performance guaranty. (See www.securityinfowatch.com/10835330.)
Representations and Warranties are present in virtually every acquisition agreement, typically to provide buyers with protection on issues relating to seller’s business and accounts. Essentially, the seller represents some set of facts or legal condition to be true as of closing and then warrants the representation following the closing date. The warranty forms the basis for the buyer’s recovery, should the representation turn out not to be true.
Indemnity Provisions allow buyers and sellers to recover damages for breaches of representations or warranties, or for third-party claims and are often the subject of extensive negotiation respecting liability caps, deductibles and time limitations.
Restrictive Covenants limit the legal right of seller and seller’s principals to compete with buyer post-closing and prohibit the selling parties from soliciting or accepting business from accounts sold to buyer.
Regardless of whether they’ve done one deal—or 50—all parties should read, understand and have counsel review these key documents before signing them.
Eric Pritchard co-chairs the electronic security group at Kleinbard Bell & Brecker LLP. Pritchard focuses his practice on the electronic security industry with an emphasis on acquisitions. This column does not constitute legal advice; contact an attorney with specific questions.