While knowing the basics of building a successful tech business with an eye toward getting acquired is important, what it comes down to is organization. Now is the time that you need to prepare carefully in order to exercise as much control over this process as possible. Things you do in the early stage have an inordinate influence on valuation and later negotiating topics.
You have a soft offer for your company, your shareholders are delighted and a few of you are already thinking about opening the champagne. Stop! Before you drive any acquisition conversations further, you need to get all shareholders together, and on the same page. Not only must you be in agreement, but you must all know the negotiating parameters, road map, business case and talking points absolutely by heart so there is no perceived disconnect when things get heavy. And things will get heavy.
This is the main error made by founders exiting for the first time. Sure, everyone knows the business plan. They know the cap table. You have more or less agreed on a price, but is your CTO a little nervous about delivering against the published roadmap? Will the time travel feature really be ready by October? How will it be ready, and which customers will pilot it? Your shareholders are delighted with an exit, but is your COO happy with an acqui-hire, while your VC has a hard requirement for a 10x return? Get this all on the table, and get it ironed out immediately. What does the story need to look like, internally, to assure you fall between 10x-12x? Does everyone know it by heart?
Here are some steps:
- Organize an internal corp dev team (assuming you don’t have one already). These will be the people responsible for preparing materials, and for negotiating with the buyer. Build the story together. Above all, agree on a solid strike price: what is the threshold where everyone agrees you walk away from the table? And what are ‘no go’ terms – are you all OK with milestones? Are you all OK with a large escrow component? Will you consider an asset sale even when you really want a share sale?
- When the story is built, rehearse with everyone and ‘war game’ it. Practice your positions. Practice your arguments.
- Set up a very regular touch-point meeting with all stakeholders (weekly). Even in the early stages, when you aren’t in due diligence, you still want to get in the habit of keeping everyone in synch.
One thing to keep in mind when in the early stages of preparing a sale of your company: senior corp-dev people on the buy-side have probably done 5 of these deals this year alone. They are all experts in ninja mind control. Even though your company is awesome, they will be on the lookout for disconnects, and they will often add negotiating points into the early discussions that appear crazy, but are designed to test your team. If they sense something is wrong, in the very best case it will be used against you as negotiating leverage. The price will drop heavily if you aren’t careful. In the worst case, it will kill your deal.
Open the M&A Pipeline…carefully!
You have a soft offer to acquire the company. How do you make that a hard offer? And how do you assure you maximize your valuation? There are a lot of fuzzy variables that quickly come into play, and understanding and managing them is essential. If you are a first-time seller, you have a handicap immediately. You are unfamiliar with the process, and you also don’t have the brand name that would add value and a sense of urgency to the buyer. You may not have a big network in the Valley, and if your last name isn’t ‘Jobs’ or even ‘Houston’ or ‘Hoffman’, you will have limited cards to play. The key is understanding your cards and counting them carefully.
First comes the messaging — use your VC and board members to open conversations with potential buyers. But do it carefully. If you are too aggressive, potential buyers might opt-out early. They don’t want to be pushed around. Your ‘plan A’ should be growth, delighting you customers and acquiring new ones. And probably raising funds (and valuation) to achieve this. You aren’t ‘for sale’, but, yes, the conversation has been initiated, and the chairman of your board thinks it is fair that all potential partners participate.
Here are a few variables that you can control, and you should be aware of while in the early stage of the acquisition process (pre-term sheet):
- US operational plan – if you are from outside the US, then you already have US customers (or a US pipeline), and you have elaborated a business plan to support this. Ideally, you have a US entity, and are hiring to support growing revenue and pipeline, but at least you should have a credible plan. Talk to a lawyer. Talk to an accountant. Build the plan if you don’t have it already. Execute early.
- Early due diligence items – It’s a simple thing, but if a potential buyer approaches and wants to start the conversation, it is MUCH better to say ‘We have a data room. I’ll give you access credentials and you can see business plan, etc. immediately.’ Than to say, ‘ummm… We’ll need two weeks to prepare all that stuff.’ Being prepared early, and developing these materials is not only good for your business, but is also a non-aggressive sign that the process is moving ahead.
- Intellectual Property Strategy – have you filed US patents yet? Do you have an IP strategy? Non-US founders will often take the approach of spending TONS of money filing an ‘everything but the kitchen sink’ PCT patent with a German lawyer, for example. Sure, that’s cool. But I would strongly suggest considering quick US patent filings. If you are already in an acquisition conversation, getting a filing date early, and protecting your assets directly in the US is a very, very good idea. If you aren’t protected in the US, and you have a US buyer, this may cause problems. Cross-border patent treaties are nice in theory, but I suggest you read up carefully here, and consider filing a quick US provisional patent to put a stake in the ground.
- Human resources – pay very careful attention to key employees as early as possible. Do you have three engineers upon whom the fate of your company rests? Make sure they are happy. If required, make sure there is a plan to include them in the process, or at least protect them and yourself at the critical stage. Look carefully at everyone’s contribution to the code base. If you do this too late, the buyer might already have sniffed them out, and this becomes an acqui-hire. If key employees will be part of the process (and they might be at a later stage), coach them carefully.
- Cap table – make sure it is super clean. I’m sure you already bought out your university roommate’s shares, but make double sure there is nothing weird here. Buyers hate complications, and even if you are awesome, any unresolved complexity might kill your deal at that late stage when the buyer’s attention to risk becomes really, really high.
- Confidence – this is fuzzy, but probably one of the most important things. And it relates to your whole team. Make sure that everyone on the team understands the plan, and can tell ‘the story’ perfectly, with excitement and energy. As a founder, you need to lead by example. Watch some YouTube videos of Steve Jobs’ keynotes. Do some Zen meditation. Practice the story over and over again in your head: the growth, the IP, the roadmap, the laser-focused execution. Honestly, non-US founders often suck at this, so you need to practice. A lot.
This is a lot to digest, so I am going to leave it here for now. If you have covered the above points well, you are in an excellent position to start working with a term sheet. In the next two posts, I’ll go into further detail about what you need to do when you have a solid offer, and particularly managing the risks that appear during term sheet negotiation, due diligence, and finally closing.
This is part two of a four-part series on start up exits by SpeedInvest partner Erik Bovee.