Here’s an extreme version of what you can expect to hear just before signing over your startup in an acquisition deal: “Our counsel says including your first-born child in reps and warranties is totally standard. We have never had any pushback on this!”
Welcome to the fun part! You are about to be acquired by ACME SaaS ‘n Widgets! You have agreed upon, and signed a term sheet, after three weeks of painful wrangling that nearly cost a marriage and two lifelong friendships. Now, all you have to do is finalize the purchase agreement and send over a few due diligence files. You are almost over the finish line! This part is just a formality, right? Right?
The end is near, but you aren’t done yet
First, a few notes on organizing your team for the final push. The operational work of assembling and shipping the due diligence material and jumping through all the hoops and audits can be daunting. Make sure you budget time, and get your COO, your accountant and your back office A-Team well prepared. Chances are they will be in crisis mode off and on until the notarized signatures (in blood) are dry.
You also need a good lawyer, obviously. If you are big enough then maybe you have in-house counsel, but probably not. Spend some time shopping around as early as possible. Deep M&A experience and references are essential, but really pay attention to soft skills. Things can get tremendously pressurized and complicated and you want an experienced M&A attorney who also communicates clearly and efficiently. Keeping things simple and building a rapport with the buyer’s counsel are just as important as any LLM.
Also, you should agree on a cap on legal fees. Throw as much legal work into the deal as possible, and don’t hesitate to get a little pushy in negotiating an ‘all in’ price for full support for the entirety of the acquisition process. These are lawyers, after all.
Regarding due diligence, you will go through code audits, share all of your contracts and financials, and I guarantee that some weird stuff will come up that you didn’t anticipate. Startup financials are often messy and, honestly, when was the last time you put your source code through an auditing service to check for license and IP conflicts? You really need to keep a level head and make sure you have stable, inexhaustible crisis experts on the core team. Consider the stresses, late nights, and the fact that the deal will look like it is falling apart two or three times during the process. Delegate responsibilities accordingly.
Finally, you are going to find yourself confronted with a purchase agreement that is probably close to one hundred pages long. By the time you are through with the red lines, and the addition of schedules, you will be holding the draft of a major historical novel. Friends of mine have had this document bound and it sits today on the living room shelf as a constant reminder that they now have an enormous legal vocabulary and a pile of cash in the place where a soul used to be.
About that soul…
Now, about that soul: you are going to want to pay particular attention to a long section of your purchase agreement covering ‘Representations and Warranties’. This is where you will be living for the next three months. This section comprises all of the guarantees, risks and liabilities that you, your executives and founders (and perhaps your shareholders and extended family) will be assuming in the case anything goes wrong. The first draft of this part of your agreement issued by the buyer is going to be utterly terrifying, and here is the reason:
There has been a lot of early stage investment in the last few years. As one VC famously said in 2010 ‘An entire generation of entrepreneurs are building dipshit companies […]’ in the hope of selling to Google for 25 million dollars. Blame was squarely pointed at YCombinator and Super Angel investors like Ron Conway. I guess I fall into this bucket as well, but I sleep pretty soundly because the success of YC companies like Dropbox and AirBnB, or Uber (and my own investments Runtastic, the greatest sports training app of all time, or Shpock, one of the world’s leading consumer-to-consumer e-commerce apps; just sayin’) has shown this prognosis to be idiotic. But the flourishing of early stage investment and the rise of the ‘Super Angel’: prolific individual investors with fairly deep pockets, have started to change the legal dynamics of some acquisitions. Lots of people want to sell their companies. A few of them want to sell at an early stage. And many are backed by rich business angels, and thus buyers have the option of pushing founders and their investors to put their money where their mouths are. Buyers are increasingly likely to ask individual shareholders to take on large, personal liability.
You are going to want to push back hard on reps and warranties in any case, but you are somewhat likely these days to find the buyer putting you, your angels and VC in the firing line. Please, for my sake, and for the sake of my future, spoiled children, make this a ‘no go’ area. Uncapped, personal liability for individual shareholders is not OK, and we need to make it stop right now. It flies in the face of the principles of corporate law, and any attempt to include this sort of provision in a purchase agreement should be punishable by an eternity in the fiery pit.
You and your lawyer can really go wild redlining the first draft of the purchase agreement, paying very close attention to the reps and warranties. Work early with your founders and shareholders to establish hard limits here.
The following months are going to be a complete roller coaster, but try to keep in mind that there was tremendous goodwill and impetus on the part of the buyer to engage in this process and deploy copious and expensive resources to push the deal ahead. Everyone wants to see this through, and often seemingly insurmountable obstacles can be overcome if you all keep a cool head and get enough sleep. Deals that get to the purchase agreement stage probably maybe won’t fall apart.
If and when you do finally push your deal over the line, take a deep breath and get psyched about your upcoming stint as VP of Whatever at ACME SaaS ‘n Widgets. Try to learn from the new job, and enjoy it as much as you can, because, I guarantee you, the moment your earnout is achieved or your handcuffs are off, you are going to be out of there. Then take your cash pile and go help out some promising startups. And, when the time is right, like a father sitting down with his moody tween, have a talk with them about the birds and the bees and break out your old collection of VentureBeat articles about M&A.