Business owners: You’re not immortal – start planning ahead

The success of an acquisition largely hinges on the price paid relative to the value received. To ensure success, it’s crucial to gain a comprehensive view of not only the quality of earnings of a business but also the quality of the reporting itself. If you’re an investor performing due diligence, here are five key considerations about the quality of the target’s financial reporting.

Too few New Zealand businesses are making good use of advisory boards. Used effectively and with the right people involved, an advisory board can solve problems, fill knowledge gaps and help to maximise growth and profits. In a complex and volatile business environment, advisory boards can help steer your business through choppy waters. Executive teams are increasingly faced with problems that fall outside their day-to-day areas of expertise, and advisory boards provide independent advice about how to navigate tricky times. What makes an advisory board unique? Many large businesses have a full constitutional board, which has decision-making power for the company. The members of a traditional constitutional board have fiduciary responsibilities, and their role tends to focus on compliance, risk management, and monitoring business performance. If they work on problem solving or growth strategies, it’s typically from a top-level strategic perspective. Risk minimisation is a priority. In contrast, an advisory board has no decision-making power and the members don’t have the same duties as the full board members. Its focus tends to be on maximising profits and growth, solving problems, and acting as a sounding board – sometimes down to quite detailed levels of execution. Advisory board members often identify market opportunities and provide network links that can support the company’s expansion. The priority is capitalising on opportunities and how to iron out problems. An advisory board provides suggestions, observations and ideas to those making the day-to-day decisions about the company. Those decision-makers can then decide whether or not to act on that advice. The advisory board is both an alternative to the traditional constitutional board and a complement, so you can have one without the other or both. We know advisory boards can be effective Research about advisory boards demonstrates their effectiveness: A survey of businesses leaders found 95.7% believed their advisory board added “real value” to their business, according to The Alternative Board. Advisory boards help businesses avoid costly mistakes; broaden knowledge and skills; and provide a sounding board; among other benefits, according to research by the Business Development Bank of Canada. A Columbia University study revealed advisory boards help organisations “remain innovative and at the forefront of their industry”, and found although board members’ experiences of past failures didn’t prevent all failures, it did minimise the probability of failure. Another US study found an inter-professional advisory board can broaden perspectives within an organisation and lead to new insights. Does your company need an advisory board? An advisory board certainly isn’t a requirement for every business. First, the company needs to have reached a certain size. Beyond that, your business could benefit from an advisory board if: your it is growing or looking to grow you want to raise funds you’re aiming to build strategic partnerships the business is facing a major change of direction, with new products or expansion into new markets the owners of the business are in the process of succession planning the business is, or soon will be, for sale. An advisory board will raise the level of strategic conversation, and it can be the difference between business as usual and an extremely valuable, highly saleable organisation. Building an advisory board You don’t need to launch an advisory board in a single push. It can begin with a single advisor – perhaps your lawyer or accountant. Alternatively it might be someone who knows the market you’re considering moving into for instance, or a person who understands the specific staffing challenges you’re facing. From there, you can build an alternative advisory board. It might include a key person from within the business, possibly the managing director, chief executive or owner. Ideally you want an independent chair with two or three external advisors. Members of your advisory board should be carefully selected to ensure they have the right skills. Identify areas where your company lacks knowledge – for example, it might be insights into a particular country, marketing campaigns, or recruitment. As the company grows, the informal advisory board can move to a more formal set-up. This means having a board charter, rules for the board members and a code of conduct. It’s vital members clearly understand their own role, and everyone else’s roles on the board and within the business. Ultimately, depending on the size and complexity of the business, you may need to establish a constitutional board in time, to ensure the company meets its regulatory and compliance requirements. Even then, having an advisory board means you can continue to have those valuable conversations about how to grow the business and solve thorny issues. Advisory boards are an investment in your company Maintaining an advisory board isn’t free, but it’s a genuine investment in the business. With independent advice, the leadership team can gain a different perspective on an issue. For example, one of our clients owned a company that had been highly successful and grown rapidly, before hitting head winds. It was clear some difficult decisions had to be made but downsizing can feel like you are failing. The process was nerve-wracking for the owners. It was with the support of the advisory board the client was able to make a long-term plan, put the downsizing into perspective, and make the tough choices. Now the business is well set up to survive the tough times and will be ready to grow again when the market picks up. Usually, though, it’s not during a quantum shift that an advisory board proves its worth. It’s an accumulation of small changes. One client is currently leveraging their advisory board to help develop their management team’s effectiveness; to clarify their purpose and vision; and to identify strengths within the business. An advisory board is the ideal forum to explore opportunities, problem solve, and seek counsel. It’s a way for a business to invest in its future and improve accountability of the management team.. It can bring in knowledge, experience and capability where and when it’s needed. In a time of high volatility, an advisory board has never been more valuable. This is an ideal time to establish an effective advisory board to help you navigate your business through these uncertain times and into a successful future.

Some years ago, I remember someone bemoaning New Zealand business owners’ lack of ambition. This person said when owners have grown their businesses big enough to start to look overseas they then sell, as long as the sale price would allow them to join the Triple “B” and buy a bach, a BMW and a boat. Although I hadn’t heard of this club before, the point that stuck with me was the comment about the real value of a company being unlocked globally by its new owners. I think things have moved on significantly since then with New Zealand companies such as Seequent selling for $1.46 billion, Ziwi for around $1 billion and Partners Life also for $1 billion. Certainly, a lot more that a ticket to join the Triple “B” club! Gone are the days when companies sold for 3-4 times EBITDA (earnings before interest, tax, depreciation and amortisation) or maybe 7-8 times EBITDA if the buyer had Australian pension fund money looking for a home. Deals like Seequent are not referable to EBITDA at all, with technology companies increasingly being sold at multiples of sales instead – sometimes up to 45 times sales and beyond. How to get the best bang for your buck when selling your business While you are sitting at the beach or lake over Christmas, thoughts of selling your company may cross your mind. If so, there are lots of things you might need to start thinking about. Firstly, get sale ready. When a company is sold, there will almost certainly be some level of due diligence – typically covering finance, legal and tax. A buyer doesn’t want any nasty surprises. Preparing for this will involve ensuring everything is in order – making sure all agreements, processes and procedures are documented and all information likely to be needed is collated and ready to provide. Some businesses plan for this several years ahead and look to have their annual accounts prepared and audited. These actions, though worthwhile, are generally house-keeping tasks and won’t necessarily increase the value of your business. So what can add value, or at least bump-up the multiple of earnings that a purchaser is willing to pay? When it all boils down, the value of a business is based on the demonstrable track record of sustainable earnings, or the prospect of growth in earnings in the future - or, ideally the combination of both. Therefore, being able to prove the reliability of your revenue and profits, and the strength of your position in the industry is worthwhile. It’s also important to have a well thought out set of financial projections which demonstrate the growth prospects for the business and how these can be achieved. Is growth going to come from the existing product base, new product development or bolt-on acquisitions to increase presence and market share? How much will this cost, and what are the potential returns if actioned? The other key question a purchaser will want answered is around people, and most specifically you! What does the business look like with you – are key customer and supplier relationships shared across a management team, meaning your exit from the business is not detrimental to its performance? Answers to these questions are usually presented in an Information Memorandum (IM), a short sales document used to market the business to prospective purchasers. Detailed sell side due diligence reports can also be provided to prospective buyers. While this won’t generally stop buy side due diligence being undertaken, it can help buyers get to the heads of agreement stage more quickly and ensure all the information and materials are ready for due diligence questions. Once a heads of agreement (high level terms likely to be reflected in any future sale and purchase agreement entered into) has been signed, a buyer will typically be granted a period of time where they have exclusive rights to undertake due diligence, and formalise a contract and purchase price. If they decide to proceed, the buyer will submit the first draft of a sale and purchase agreement. The buyers and seller will negotiate the terms of the sale and purchase agreement with the document going backwards and forwards between the buyer’s lawyers and the seller’s lawyers. The document may go back and forwards several times while clauses are negotiated. Will you sell shares or assets? A business sale can involve shares in the company or its assets. The advantage of a share sale for the seller is they can walk away and often the sale proceeds are a tax-free capital gain. The disadvantage for a buyer is they inherit any “skeletons” buried within the company not identified during due diligence. Often the sale and purchase agreement will seek to put some of these risks back on the seller in the form of vendor warranties and indemnities. Under warranties and indemnities, the seller will have to refund part of the purchase price if specific things are identified or occur. Where the seller still wants to draw a line in the sand and not have to worry about warranties and indemnities, it is possible to obtain warranty and indemnity insurance. This is specialist insurance, and a premium is paid to the insurer to transfer the risk arising from warranties and indemnities post sale to the insurer. Typically, the warranty and indemnity insurer will want to review all due diligence reports and may require further due diligence to be undertaken or exclude certain risks. Where business assets are sold, the company’s past stays with the vendor with the business being transferred into an existing or new company owned by the purchaser. This involves changes of ownership of assets, assignment of business contracts and the transfer of employees. It can also involve the purchaser assuming agreed liabilities, such as leases and employee entitlements like holiday and sick pay. When business assets are sold, the vendor will need to wind up the selling company to access any capital gains tax free. What about tax? Purchase price allocation Purchase price allocation is where the parties agree what portion of the overall purchase price is allocated to the various assets acquired and liabilities assumed. This is a key area for negotiation. A purchaser will want to allocate as much of the purchase price as possible to items which will be tax deductible either upfront or at some point in the future, such as plant, patents and trading stock. The seller will want to allocate as much of the purchase price as possible to non-taxable items such as goodwill and trademarks to increase the amount of non-taxable goodwill that they realise. There is generally a natural tension between the seller’s best outcome and the purchaser’s best outcome, so Inland Revenue will generally accept the purchase price allocation agreed between unrelated parties as being a fair market price. GST The purchase price will be either inclusive of GST or have GST added on top. Generally, a seller will insist on the purchase price being “plus GST if any”. The purchase price can be zero rated for GST in certain circumstances, such as where an interest in land is included in the sale (ie, a lease) or where the sale is made to a purchaser outside New Zealand. GST zero rating can also apply to a going concern, ie, where what is being purchased is able to be operated on its own immediately after the purchase is complete without adding anything to it. As most business require premises, it is generally quite hard to have a situation where there is a going concern which isn’t already zero rated for GST due to an interest in land being transferred. There are many more things to consider, and if you are considering selling your business you should get your house in order sooner rather than later. There may be significantly more at stake that membership in the Triple “B” club!