The exit: Fear and Loathing in M&A for founders

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You’re sitting in your office late on a Friday, alone. Hot wet tears are streaming down your cheeks. Your mobile phone rings constantly. Your CTO, shareholders, and everyone else is calling to learn how the meeting went. The COO who joined you on the conference call has already left and is taking Monday off.

And, of course, now there’s a dilemma.

After months of prep, tech and business development meetings, megabytes of pre-due diligence material, an ambitious joint business case, synergies, frank and open discussions about feelings and lifelong goals, dinner with the proposed acquirer’s leadership team, and a process that seemed to be going so smoothly, you have just hung up on the buyer’s VP of corporate development. They are excited about your joining the family, fantastic opportunity, etc. and they are happy to offer you precisely 40 percent of what you were sure your company was worth.

How do you explain this to your shareholders? Your co-founders? Who is to blame for this life altering disappointment? Why you? Why now?

Fear is a powerful negotiating tactic

There are a few important things to be learned from this scenario. First, Bovee’s law of mergers and acquisitions: if there is going to be bad news it always comes late on Friday afternoon, just as you are making plans for the weekend. You receive a call from the chairman of the board at 4:53 p.m., and you know, immediately, from the tone of her voice what she is going to say. It always happens on Friday.

Second, driving value in an acquisition has nothing to do with all that stuff you were working so hard on the last few months. Value in an acquisition is driven by fear. Period. What is going to motivate a CEO to spend top dollar for an acquisition? Feelings? Synergies? A really, really good imaginary business case? No. The threat of being heckled on stage at her keynote because she publicly lost a perceived major advantage to a competitor at the last moment. I’m not going to name names, but I just saw this happen a few weeks ago, and it sucked.

Let’s go quickly back through the list I gave you in “The Exit” part 2: you have an ambitious global expansion plan, a data room, protected your IP, cleaned up your cap table, and made sure key people are happy. You have been practicing the pitch and the story relentlessly, obsessively with your co-founders, and have set up your internal corp dev team and “wargamed” all the scenarios and negotiating points. You were ready for this. You were so ready, but now it looks like it will be impossible to close a 60 percent gap. The buyer is willing to issue a term sheet, and wants 30 days exclusivity, but the only alternative seems to be to back away from the table. And the disappointment is going to hit your team hard.

Everything that you did is important, but the key piece is to manage the acquisition so that you can create significant and true leverage. And the best leverage is to have other acquirers sitting eagerly at adjoining tables.

Timing is everything

Timing your discussions with competitive bidders is absolutely essential, and it is by far the hardest part. This is where investors and board members come into play. In certain cases, you might even want to consider retaining an M&A professional, because this piece requires full-time dedication. In the early stages, you, as a founder, shouldn’t be too aggressive, and if you are the CEO, and particularly if you are also heavily involved in sales for your company, you may want to hand off the early M&A outreach to someone else. You’ll get involved soon enough.

This part of the process is very much like enterprise sales, except the beginning is much easier. And the middle is much, much harder. You need to open a big pipeline of potential acquirers, and reach out to them all systematically. There are a few factors that are working against you here, and which make acquisitions rare (and which make timing an acquisition to maximize your leverage not only rare, but nearly impossible): there are probably only one or two dozen companies who are realistic acquirers for your company, but among this set there is a high probability that the subset having both budget and having earmarked companies in your sector as strategic targets for that year is zero. That funnel gets so narrow so quickly that you really need to put energy into the early stage.

Making the initial calls is easy. Many people, battle-hardened from years of enterprise software sales, will be familiar with negotiating access to decision makers. That doesn’t happen so much in M&A. Get your chairman of the board or one of your VCs to call their CEO. ‘This is about a potential acquisition…’ There, that stage is done. You have negotiated access to the power person.

I get a lot of questions from founders about trying to quantify the early M&A process: what is Google buying this year? How much did they spend on companies in our sector? What about Apple? And you can quantify these things to a certain extent, but they don’t help much beyond building the initial pipeline. M&A is particular for each company, and is tightly wound with company culture. It’s a real black box, in many cases. For instance, Google does spend lots of money acquiring early stage companies. And they do lots of deals, but they are also quite well known for acquiring talent. In general, the deals are not often big. And if you are talking to a large acquirer like a Cisco or Yahoo!, they have often developed their shopping list for that budget period long before your conversation started. You will have limited visibility or influence. I’m sure your technology/team/market is amazing. The VP of corp dev probably doesn’t care.

Sorry, no intermission for M&A

For similar reasons, the middle part of your M&A pipeline development gets hard. This is where you should be personally involved, or someone who pitches your company really, really well. In the best case, the acquiring CEO will delegate representatives from corp dev, the CTO team, business development/strategy and possibly product in early meetings to assess the opportunity. In the worst case scenario, you will find yourself talking to a corp dev associate who was an investment banker two years ago. In this latter case, it probably isn’t a deal. You found yourself outside the core acquisition bucket for that budget year, and they kicked it to an associate. It’s not a priority, or your first pitch was really poor.

When you find yourself on track with the right teams, schedule your time very carefully so that you can bring them up to speed in tandem. If you need to slow things down, don’t delay responses or deliverables: make sure you appear totally on the ball, and have your material prepped. Respond to data requests within 24 hours. But push meetings out if you need to. You are very busy. Your schedule doesn’t open up for 2.5 weeks.

If this process works out well, you might find yourself in acquisition discussions with 2 or more competitors, and this is the ideal situation. If you have a growth scenario (fundraising and maybe an IPO somewhere down the road) that is nice, too, but the threat of a competitive acquisition drives the strongest leverage. But you do also need to handle these discussions diplomatically. Don’t be too aggressive. Figure out ways to signal, discreetly, and as early as possible, that you are in discussions with other buyers. But don’t throw it in anyone’s face. They will back off quickly. If you can signal this well it should help you avoid the ‘disappointing initial offer’ scenario as much as possible. It can save you some tears and a ruined Friday night.

What to do about a disappointing offer

If you do receive a disappointing offer you can back off graciously. And often a clearly worded email restating the positive sides of the acquisition, the synergies (technical and cultural) the palpable excitement among your founding team, and the significant upside in the joint business case, can work late-stage miracles in pre-term sheet discussions, particularly (and often only) if coupled with some serious competitive leverage. If you have the guts to walk away the buyer will sense it, and you can quickly qualify or repair the deal.

But also be aware that there are limits. I’m sure you have done your homework as part of the development of your M&A pipeline, but look carefully at annual M&A spend and deal sizes of your potential acquirer. You have already agreed on an internal strike price. Reality check it, and if it looks like you could be headed for disappointment, get together with your team immediately and explore alternative scenarios.

At this stage, all the elements should be in place to start with a reasonable offer. There will be some verbal back-and-forth, standard negotiating, and you will probably spend a week or two arriving at what both parties consider a fair price and high-level terms. This is when the buyer will issue a term sheet.

Term sheet time

The term sheet is often surprisingly light after all of the process you have been through. It comprises an outline of the deal, is usually non-binding, and gets you ready for the final purchase agreement which is where the real fun begins.

Things to pay attention to in the term sheet: the buyer will almost always ask for a ‘no shop’ period, during which you can’t talk to other acquirers while the term sheet is negotiated. Obviously, push to keep this as short as possible. If you can get two weeks, that is awesome.

The term sheet should also include the purchase price, deal structure, escrow and ‘hold backs’, if any; there might be some HR stuff, termination, governing law and a few other points. You will spend the ‘no shop’ period negotiating all this. One important consideration: make sure that the terms are crystal clear, and do NOT under any circumstances, assume that you can change agreed terms simply because the document is non-binding. Attempting to do this gives a very bad signal to the buyer.

The buyer’s perception of risk will rise considerably in later stages of negotiation over the purchase agreement, and screwing up early communication and then attempting to backtrack during later, expensive legal wrangling can kill deals. Fast.

So, in a perfect world, you have managed a competitive acquisition process, it is Friday afternoon, and you just got off the phone with the acquiring VP of corp dev. The offer was only 17% off the strike price you had agreed with your internal corp dev team, and there is every certainty you can close the gap. And, in case you can’t, Acme SaaS and Widgets want to schedule a corp dev call next week. You give your COO a big hug and you both stroll off into the night to have a drink and plan your weekends.

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