Situation: A company wants to add outside members to its Board. They seek individuals with industry knowledge, experience and contacts, among other things – members who can provide high level introductions to potential clients or key players within these organizations. The team is struggling to develop a list of candidates. How do you recruit an outside Board member?
Advice from the CEOs:
Your best bet is to hire a firm with a good track record of Board placements.
Given your other priorities, it is unlikely that you can devote the time required to develop a list of candidates on your own. Ask yourself whether this is how you should be spending your time, and what the value of that time spent would be.
What level of business do your expect from the contacts that the new Board member will provide for you? Calculate a fee that you would be willing to pay a recruiter as a percentage of future business. A fee of $25,000 or more for a good member is not out of line.
Network with significant players in your industry, and also look at who is serving on their Boards.
Investigate LinkedIn Groups – Groups that focus on Board members. These can be helpful in learning who might be available and connecting with them through mutual acquaintances. In addition, firms that specialize in Board placement frequent these sites. Also look at LinkSV.com which is more focused on Silicon Valley.
Determine what you will offer as both liability protection and compensation for new Board members. At a minimum you want to have a good directors and officers insurance policy, as well as stock and cash compensation that is competitive for your industry and company size.
Current Top Executives may be too busy to meet your needs. Consider individuals with deep experience who are nearing retirement or recently retired.
Situation: A company just received an approved vendor renewal contract from their major customer. Upon review, they found language that potentially holds them liable to cover the customer’s legal costs of enforcing the agreement. If the company does not sign the contract, they potentially lose their major customer. How do you respond to an onerous contract clause?
Advice from the CEOs:
Corporate attorneys are paid to protect the corporation and purposely write vendor agreements to their favor. There are two issues here: whether they will negotiate this clause, and the likelihood of enforcement – which may be very small.
Double check your previous vendor contract and assure that this language want not present then. If the language is the same as in past agreements all you are doing in updating an expired agreement. Perhaps there is less of an issue than you anticipate.
If you find that this is new language, then call your primary contact in the customer company and ask about the new language. It may be something that their lawyers are trying to add to contracts but will forgo if called on the language. However, if your primary contact responds that this is new standard language in their contracts, you still have options.
Try pushing the issue to higher levels of the organization or through your advocates in the company and ask them them to modify the language.
Call your own company lawyer and ask how they advise you to respond. A letter from your lawyer to the customer’s lawyers may settle the issue.
Call other vendors of this customer and find out how they have responded to the new contract language. If several vendors call and complain about the fairness of the language, the customer may determine that the new language is not worth the hassle.
Situation: A company has a long relationship with its initial client, which provides the company with key intellectual property. This client handles all marketing, sales and distribution for the company’s principal products, but only accesses 20% of the market. The client is concerned about having its image associated with expansion into markets that the company wishes to pursue. How do you structure a deal that enables you to access the broader market without offending the client?
Advice from the CEOs:
The issues for the client are public relations and liability. They don’t want to be associated with certain segments of the larger market as it may compromise customer perceptions of their core business. Further, they want to be indemnified should they face damages from your forays into the larger market. It is important that you address their concerns.
Sit down with the key client. Pose a problem that will generate the solution that you seek and let them solve it on their own. Then seek an agreement with the client on carve-outs within the larger target market with which they are agreeable.
Build an external company with different branding to approach the larger market, without jeopardizing the relationship with the key client. If ownership and management of the two entities are the same be aware that this is a thin veil.
You may increase opportunity for success if you build your own successor product – one tailored for the larger market – while your key client is paying you for current business. Once the product is built, ask the client whether they want to be involved and if so, on what terms. This enhances your bargaining position and reduces your downside risk.
Expand your offering, where current products are part of a larger offering. You have two alternatives: go there anyway, or go there with the client. If the client decides that they don’t like what’s happening and opens the market this could be ideal for you.
Situation: The Company is interested in acquiring either the intellectual property (IP) of another company or the company itself. The target is a minor division of a larger parent company. The CEO contacted the parent and confirmed their interest in a deal. What are the key factors to negotiating an IP acquisition?
Advice from the CEOs:
You need to assure your rights to both current IP and future enhancements. This applies whether you or the parent is the final holder of the IP.
Look for clear language as to what constitutes base IP, derivative IP and extensions of the IP. You want to preserve your interest in future derivatives and extensions that you create.
There is a material difference between your position and the parent’s.
If the parent retains the IP, they also gain certain rights to IP extensions based on the current IP. If you own the IP, their potential rights to future IP are lost.
If the parent feels that the IP has strategic value – whether or not they are currently taking advantage of it – this will be one of the more difficult aspects to the negotiation.
What options are there besides acquiring the company?
The parent can grant a fully paid license to the technology, with access to the people and assets, waiving residual rights to future IP extensions, and no restrictions on transfer.
Another option could be a one-time royalty fee that is a perpetual license.
Within your due diligence, try to get a sense of the parent’s motivations and concerns for entertaining your interest in the acquisition. This will help you to frame a deal that works for both parties.
If the parent has been an active licensor or seller of IP, look for lawyers who know the company. Try to secure one of these as counsel for your negotiation.
From a liability standpoint, it is better to buy or license the IP and technology than the company. Liability travels with the company. Part of your negotiation will be who inherits any carry-over liability.