Tag Archives: Negotiation

Gee, I Like Your IP! Let’s Talk: 3 Steps to the Dance

Situation:  The Company is moving from a specialty solution to a complete solution. They have identified a partner with intellectual property (IP) that will help them fulfill this vision. How should the CEO approach this company to access their IP?

Advice from the CEOs:

  • There are two aspects of any deal: technical feasibility that will produce value; and the emotional needs of the principals.
    • The technical aspects are the most straightforward and easiest to value.
    • Frequently, a favorable deal hinges not on technical feasibility, but on the desires of the principals and their ability to trust one-another.
  • If you are convinced of the value, you must convince the other party that their best option is to work with you. Then you can negotiate the specifics.
    • Sell your vision: the technologies together are much more valuable than they are alone: 1 + 1 = 5!
    • If control of the technology is an issue, you must negotiate an arrangement where they are comfortable with your control.
      • Do you and the other party have a trusted advisor in common or is there an individual who is respected by both of you? This person can help communicate your good intentions.
  • If your best efforts do not produce an appealing arrangement, your fall-back position may be a partnership. If the partnership is backed by modest investment with options for future purchase, this may be another way to for you to eventually gain control of the technology.

Key Words: IP, Intellectual Property, Negotiation, Emotional Needs, Feasibility, Deal, Partnership  [like]

My Worst Nightmare – Sell or Downsize? Fifteen Considerations (Part 1)

Situation: The Company is losing money and has been approached about a merger. The CEO’s ideal outcome would be to get cash on the table, integrate with the merger partner and continue business. The other alternative – downsizing – may hurt company morale. What are the best options available?

Advice from the CEOs:

  • The realities of mergers:
    • 70% of mergers fail, and the merger process often leaves founders with a minority stake in the company.
    • Experience of others with partners has been disappointing – better to control your own destiny.
    • Look at all alternatives before you jump into a merger. You founded the company and have brought it this far. The company will be a different company following a merger, and not the company that you founded or have led to date.
  • Message to your potential merger partner:
    • Be a reluctant bride.
    • “We are making improvements to return to profitability and I’ve joined a board of CEOs who are consulting me through the process.”
    • If the partner sweetens the offer to keep the merger on the table, make sure that you get 51% of the merged company and retain control of your own fate.
  • Reconsider downsizing – Others have found the downsizing experience wrenching, but with far more positive results than they expected.
    • More on this in the next ceo2ceos blog.
  • Summary: look more closely at your situation before your jump into a merger. If you can save expenses, return to profitability and stay independent you will be happier.

Key Words: Merger, Negotiation, Ownership, Downsizing, Mitigation, Layoffs, Profitability  [like]

Partnership Agreement for a New Venture: Seven Points to the Negotiation

Situation: We are negotiating a partnership venture. We would fund the entity, and the partner will earn ownership through sweat equity. How do we draft a fair partnership agreement?

Advice from the CEOs:

  • The most important factor is the ability of the two partners to drive a successful venture: proof of ability to contribute needs to be a prerequisite to allocating ownership.
  • How does the sweat equity partner prove their capability?
    • Create a schedule of milestones for the partner to earn ownership, based on mutually agreed objectives or revenue generation.
      • The beauty here is that you retain control until the partner has proven their value by delivering results.
      • The potential downside is long-term liability of the venture.
        • The longer that you retain majority ownership, the longer you retain majority liability.
        • Insure yourself against this liability.
    • Buyout clauses are important to retain your interest if the partner fails to deliver.
    • Include a liquidation clause in case the venture fails.
  • Negotiating the agreement:
    • Draw up a 6-month letter of intent. Specify what each side brings to the table and what each commits to deliver. Set clear, measurable, time-bound objectives.
    • Negotiate fair protections desired by each party.
    • Consider a consultant to facilitate settlement of areas of contention.
    • Theoretically, each party needs their own legal counsel. This adds expense but provides protections for each in the final agreement.
    • Factor the cost of legal advice as well as consultant facilitation into your planning model.

Key Words: Partnership, Joint-Venture, Sweat Equity, Agreement, Negotiation, Buy-Out Clause, Liquidation Clause, Letter of Intent (LOI)  [like]