Tag Archives: IP

What is the Role and Value of an M&A Consultant? Four Points

Situation: The owners wish to sell a company. One option is an M&A consultant to assist with the sale. The CEO wants to know about others’ experience. What is the role and value of an M&A consultant?

Advice from the CEOs:

  • The first step is to assess the strengths and weaknesses of a consultant to determine their value.
    • The cost of an M&A consultant is inexpensive relative to the value of the business.
    • Accounting rules and M&A practices of public companies do not always apply to private companies. Valuation is affected by variations in profits year-by-year, so consultants typically use 3 to 5 year historical results for comparison against industry standards.
    • Technology companies may have a different value than service-oriented businesses, particularly if significant IP is involved. Look at the creativity of potential consultants’ solutions.
  • Consultant alternatives:
    • Business brokers, accountants, and valuation specialists can all offer valuations.
    • Investment Bankers who charge an upfront fee may be more strategically oriented. Typically, the more strategic the valuation exercise, the more dollars involved.
  • Be cautious in choosing a consultant.
    • Many business owners spend a lot of time and money with accountants and lawyers when they could save by working with a business broker paid on a commission basis.
    • Business brokers are skilled at getting business sold – however the deal is not necessarily in the best interest of the owner. Brokers are paid by commission and so may not have the best interests of the owner at heart.
  • What should you look for in a consultant?
    • Maximization of sale value with a minimal tax exposure.
    • A consultant who will help the owner figure out what they want from their business and exit – who will help to establish owners’ exit objective, a key to a successful exit.
    • A consultant who will help choose the right team of advisors.

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Should You View a Competitor’s Illegally Published Code on the Internet? Four Points

Situation: A CEO recently learned that the proprietary code for both his company’s and his principal competitor’s products have been published on an international web site. He is conflicted about whether he should look at his competitor’s code, knowing that this would potentially be illegal in the US. Lawyers have offered conflicting and vague advice. Should you view a competitor’s illegally published code on the Internet?

Advice from the CEOs:

  • Consider the status of IP protection outside the United States.
    • In some countries there do not appear to be clear legal guidelines. One of these countries is likely where this situation originated. The country in question either lacks rules governing IP or the ability to enforce rules that exist.
    • The frustrating thing is that the playing field is not level between US and non-US companies. US companies are held to a high ethical standard by US law, whereas competitors in other countries that are not held to the same standard are free to review the illegal source code and learn from it as they can.
  • How complicated and expensive would it be to change the code? If this is feasible and not prohibitively expensive this may be the best option. Updated code can be provided to users through a software update.
  • Any company has to assess their own ethics as they craft a response to this situation. Make sure that the solution is consistent with the company’s ethical standards.
  • Could this have been an act of economic terrorism and/or theft?
    • If so, it is possible that the U.S. Justice Department could step in if one can make a case for national or economic security (unfair trade) based on violation of software copyright laws.
    • An action like this would, at a minimum, discourage similar future events. It could also help reduce the likelihood that competitors would try to profit from this situation at the company’s expense.

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How Do You Attract Investment to a Small Company? Four Perspectives

Situation: A small company seeks outside investment to support its growth. The company’s industry is dominated by large, well-recognized players. These companies have historically been the company’s customers; however, they have a quarterly mindset, and are increasingly looking to support their own development groups. How do you attract investment to a small company?

Advice from the CEOs:

  • What is the company’s ROI and risk profile?
    • Positive ROI, particularly taking advantage of new distribution channels.
    • ROI turnaround is typically 1-2 years.
    • There are about 50 similar companies in the market.
    • The company possesses intellectual property that makes it appealing.
    • Project maturity is generally considered a risk in the industry – it is not as experienced or mature as other industries.
    • An additional risk is that new developments in online distribution are continually changing the industry environment in unpredictable ways.
  • Investigate and approach companies in other industries with similar structures – dominated by large players but with a healthy presence of smaller companies. Examples include the movie industry and real estate pools.
    • Talk to investors who are familiar with these industries to see whether they would be interested in investing in the company’s projects.
  • There is a good deal of money out there looking to beat the current returns available through the stock market and paper investments. Look for an angel investor.
  • Given the Risk/Reward structure of the industry, approaching professional investors may be the best bet for the company.

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How Do You Delegate Challenging Tasks? Three Suggestions

Situation: A company is creating new capabilities which require engineers to think beyond the limits of current capacity. Some are hesitant to take on these tasks, which are critical to the company’s maintaining its competitive edge. How do you create the tools or capacities to make these technical leaps? How do you delegate challenging tasks?

Advice from the CEOs:

  • Encourage the engineers to expand their conceptual “boxes”. Encourage them to
    • Utilize web-based searches of existing research on technical boundaries;
    • Explore their own creative capabilities – encourage them to connect to science UseNets for solutions to technical challenges;
    • As solutions are developed using outside resources, have engineers document progress so that intellectual property rights can be preserved. Line up legal resources to assist.
    • Encourage them to use their unconscious processes to enhance the “Eureka” factor. Allow them to work on multiple related tasks that can spark creative solutions within the team.
  • Consider this challenge as part of the process – acknowledge the “point of despair” that is often encountered with new technical challenges. Encourage them to use their creative capabilities to move beyond their perceived limitations.
    • Understand that this will involve the use of scarce resources and that mistakes will be made in the learning process.
    • Be patient and treat these as the cost of progress.
  • Other options to consider:
    • Investigate resources at nearby universities. Faculty and students appreciate the opportunity to be involved in cutting-edge projects. Protect the company by signing intellectual property agreements with the individuals and institutions.
    • Invest in and expand the library of cutting-edge resources for engineers to use as tools to develop solutions.

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How Do You Grow Business in China? Four Perspectives

Situation: A company has established a foothold in China. Their objective is to grow that business. The CEO is curious about the lessons that others have learned while doing business in China. How do you grow business in China?

Advice from the CEOs:

  • There continues to be ambivalence about the legal challenges of doing business in China. Primary concerns include both protection of IP and corporate / securities law. Become the firm that lifts the fog and charge a premium for this talent. Play off of corporate fear factors about doing business in China.
  • Networks in China look much different from networks in the US.
    • In China there is the government, and then there is the Communist Party which really runs things.
    • Particularly on a regional basis, the Chinese Communist Party has both formal, informal, and “nonaffiliated” branches and activities. All of these may be controlled by local or regional officials with little or no oversight by Beijing. Much depends upon shifts in the political climate.
    • Contacts within Chinese companies and law firms will be critical to understanding how to negotiate these networks on behalf of the company’s Chinese and American clients.
  • China has been big in the press for several years but may not be center of focus of all large firms yet. They may be waiting for additional clarity before making a significant investment China. Be a pioneer who points the way for corporations that feel that they have to be part of the China game.
    • As you develop expertise in China, this may generate opportunities to become the service bridge for other firms who find it more efficient to rely on others’ specialized expertise rather than build their own expertise in China.
  • Use the Blue Ocean Strategy techniques that are used by large corporations to create differential advantages for the company’s China presence.

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How Do You Best Test a New App Online? Five Perspectives

Situation: A CEO has a new app that her company wants to test online. The principal challenge is avoiding a “catastrophic success” – success that ramps so quickly that the company is unable to deliver the quality or responsiveness expected by users. How do you best test a new app online?

Advice from the CEOs:

  • The challenge is similar to that faced in the massively multiplayer game space.
    • Creators target a small number of known enthusiasts (sneezers) with the message that they are special. The creators ask them to preview a new game and provide feedback that will help the creators produce the best game possible.
    • Never apologize for an Alpha or Beta test. Let enthusiasts know that they are getting the first peek at what will be the greatest thing since sliced bread. Enthusiasts will tolerate Alpha conditions – as long as the company responds quickly to their suggestions for service or performance improvement.
  • For initial live tests hype the coolness and uniqueness of early availability and adoption.
    • Don’t lower expectations – manage them by responding very rapidly and fixing any glitches. This is why Web companies are 24-hour, eat and sleep in the office affairs during launch and for as long post-launch as needed to assure success.
    • Continually hype the coolness of being involved early.
    • Use the current version as the early test. When the company is ready to spread beyond the very first users, reward them for sneezing the app to other users.
      • For example, as a Beta Testers, users get 10 free 1-year plug-ins to give to their friends. For each additional user that they bring on-board, they get an additional 10 free 1-year plug-ins.
      • This technique supports the coolness of having been a Test participant because it makes the participants cooler with their close circle of contacts. The really smart ones will give free plug-ins to other sneezers and influencers. Reward this latter group for bringing on additional users.
  • Using lessons from the gaming market:
    • Shake out all issues pre-Alpha Test.
    • Conduct automated testing of the software via server farms that are set up for this.
    • Be prepared for upgrades – both in the software and in the server farms. Typically upgrades are conducted while the software and systems are live.
    • Create test localities to pre-test any upgrades to assess the impact on performance and service prior to deployment. This minimizes disruption to the broader audience.
    • Recruit, alert, and reward those who assist with these tests.
  • It is possible to conduct an unsophisticated Alpha Test, but this can’t be risked in Beta Tests.
    • Alpha testing is usually conducted as an internal exercise and lasts until all of the bugs have been identified and worked out.
    • The Beta test is then planned, with a known number of sites or users.
  • Concerning IP Protection:
    • Threats will come from two sources:
      • The iTunes types who may perceive the new offering as a threat to their markets – ones with deep pockets to keep the company busy defending its legal position.
      • International teams who rapidly clone any new technology that they find for a variety of motives. These groups tend to work from locales where IP protection is difficult to impossible.
    • IP is not secure until tested in courts. Often this involves the most innocuous aspects of the IP or software offering. In addition, big players may seek injunctions to halt service until courts resolve claimed IP conflicts.

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How Do You Evaluate an Acquisition? Five Points

Situation: A CEO is evaluating an acquisition which could significantly contribute to his company’s financial position. Patented technology may add value to the deal. The founders of the acquisition target are willing to work part-time to facilitate the transition of their technology to the acquirer. How do you evaluate an acquisition?

Advice from the CEOs:

  • Set a timetable to close the deal or walk.
  • Two key factors in the due diligence process will be strength of the intellectual property and cost of the acquisition long term.
  • Another key factor to evaluation will be how this opportunity fits into the company’s larger financing plan. Currently the company is undertaking a financing round. How much will this acquisition contribute to or distract from the financing round?
    • If this is a primarily a value-add opportunity, will it add to the larger financing round?
    • Can the larger financing round be completed on time while pursuing this opportunity?
    • An option is to negotiate a white label agreement – an agreement that will keep the company in the game while completing the larger round.
    • If the founders are not amenable to a delay, what is the cost in terms of funds and effort versus the larger round.
  • The technology appears interesting, but the timing is bad given your need for the larger financing round. Here’s an option.
    • Go to the founders and start the discussion. Secure a license or hire their programmer. Let the technology go dark until the financing round is completed.
    • There is value here – but do this as a side focus if it’s not too expensive. Assure that the deal includes both rights and the underlying algorithms.
  • Delegate this to someone else in the organization. The CEO’s focus is the larger financing round.

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How Do You Generate Near-Term Revenue? Seven Suggestions

Situation: A young company that focuses on personalized solutions needs to generate near-term revenue to meet expenses. There are also options for debt or equity financing, but the terms for each will equally depend on near-term revenue potential. How do you generate near-term revenue?

Advice from the CEOs:

  • Think in terms of the referenceability of early customers.  As a new company, the first five customers define the company to future customers.
    • The core values of the company will help clarify how to make early choices.
    • Don’t just go for the easiest closes.
  • Create a chart of potential customer prospects:
    • Segment potential prospects into groups.
    • What is the deal model and key value proposition for each group?
    • Create a video and communications package to demonstrate the company’s benefit to each group.
  • There are trade-offs between the different deals that the company will pursue:
    • Small fast deals are most likely to meet immediate cash flow needs.
    • The biggest deals may involve the creation of LLCs. These will involve both more time and additional legal fees.
  • Make sure that early deals align with the company’s core brand.
  • Consider outsourcing to speed the provision of services to early clients. Build this cost into your billings. Assure that the funds from early deals flow to or through the company. This will improve the financial story to additional clients.
  • Consider serving special interest groups. Their potential value is that they work for their passion more than for money. If the company chooses to work with one or more of these groups, assure that customer selection aligns with company values.
  • The current focus for near-term monetization is on merchandizing. As an alternative, consider charging a separate fee for the use of company IP. This may give clients additional incentive to utilize company technology to monetize their investment.

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How Do You Create Predictable Costs and Profit? Seven Suggestions

Situation: A company finds that it’s costs and profitability vary greatly by season and during economic fluctuations. Some of this is due to hourly rate fluctuation and payroll costs. They also have excess capacity during slow periods. However, new projects arise quickly, and the company must be prepared. How do you create predictable costs and profit?

Advice from the CEOs:

  • Here’s the grim reality. In volatile markets, forecasts are meaningless. Instead of fretting over forecast accuracy, focus on increasing billable rates and managing expenses.
    • To generate additional revenue per project, add a flat percentage charge for project management on top of time and materials. This is often treated by clients like a sales tax or a gasoline cost adjustment and may not penalize contract negotiations.
  • Is it possible to build a sustainable revenue source to resolve profit lumpiness? There are options:
    • Application maintenance projects. After building a box add a provision for maintenance/upgrades as new capabilities and technologies are developed. This can cost-effectively extend the life of the box and long-term profitability of the product that the box supports, while gaining an annuity revenue stream.
    • Add a maintenance add-on service to leverage the company’s core competence on an ongoing basis. Provide technology upgrades through a maintenance subscription similar to software companies adding optional access to all new releases over the course of a year for a fixed subscription cost. The cost to the company for upgrade downloads is essentially nothing, but it gains an annual annuity revenue stream.
  • Investigate a help desk service to sell via subscription to small companies. Most clients use less than they anticipate; however, they prefer the security of a flat price subscription service.
  • What additional info can be gathered through sales to better drive sales forecasts metrics? Look at the past several years: is there any seasonality in a multi-year analysis. It may not occur every year, but if you there’s a pattern it may enable the company to proactively reduce costs where there’s a predictable dip in project demand.
  • Are sales people responsible for both maintaining client relationships and creating new business?  Most companies split these functions because maintenance is like farming while new business development is hunting – few sales people excel at both.
  • If, in development, the company develops IP, can this be used? When there’s down-time can capacity be leveraged to develop the company’s IP portfolio? Look at IP licensing opportunities. This provides an additional potential source of annuity revenue.
  • While it is important to figure out an annuity revenue stream, the principal lesson from the discussion is that most CEOs say that margins are better on fixed price projects than on time and materials. The key is to control to client requests for add-ins or adjustments and to include provision for these in contracts.

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How Do You Stay Focused When It’s Busy? Five Points

Situation: A CEO and his COO find it difficult to focus on core tasks when business is booming and everyone is busy. The company is small but has been very successful. However, the pressure of simultaneously attending to key customer relationships, training new people, and formulating plans is overwhelming. How do you stay focused when it’s busy?

Advice from the CEOs:

  • If the CEO and COO are doing a mix of corporate and project tasks, the first step is to delegate so that top staff focus on strategic areas rather than execution.
    • Over the next week, keep a record of what the CEO and COO are doing. At the end of the week sit down and determine which activities were corporate activities, and which should have been delegated to staff.
    • As an example, training of new personnel should be a key role of someone else. The CEO and COO will be involved, but only tangentially. The bulk of onboarding should be handled by staff.
    • Similarly,restrict sales activity of the CEO and COO to high level discussions and decisions.The rest should be handled by sales staff.
    • What must the CEO and COO be involved in?  Intellectual property development, high level decisions about new service offerings, high level decisions on business expansion opportunities, and occasional oversight of company operations.
  • It is important to focus. The first priority should be the company’s principle revenue stream.
  • The second priority should be new service offerings which are central to efficient delivery of the primary revenue stream.
  • Meet with top staff and develop a five-year vision. The order of priorities that are developed will determine where to focus.
  • In the process of developing priorities, ask the following questions:
    • What do you love and what do you need to love?
    • Analyze the comparative importance and urgency of each activity of the CEO and COO. Which require top level input, and how much? Which are better delegated to staff?

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