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Keep Your Cool During a Fire Sale

Time to sell? Follow these four principles to a smooth closing, and keep your reputation intact.
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You launched a new venture and even closed a small amount of investment. Unfortunately, your start-up was never able to achieve any meaningful traction. Now, you are faced with two unenviable choices: accept a paltry acquisition offer or shut down the company. If you decide to sell, how can you effectively manage the transaction?

The tech industry has seen its fair share of disappointing exits. Often referred to as "acqui-hires", "talent acquisitions," or "soft landings," buyers in these deals are primarily concerned with acquiring your team. Your investors receive some small portion of their money back and your team signs employment offers with the buyer at closing.

While all M&A transactions can be difficult, fire sales pose unique challenges. Following these guiding principles can help ensure a smooth closing and keep your professional reputation intact.

Know the Gatekeepers.

These kinds of deals will generally require buy-in from several parties on your side of the table. For instance, it is quite likely that your investors have a contractual right to veto the deal, particularly if they are equity holders. Also, the buyer may require that a very high percentage (if not all) of your team members join on as employees at closing. Additionally, buyers in fire sale exits often demand elevated levels of stockholder approval on the deal, even beyond what is required by law (so as to avoid future claims from disgruntled investors that the deal was "unfair"). To top it off, your bank may have a say as well if you have any outstanding business loan debt.

Work with your attorney to figure out who holds the power and can effectively block the deal. Understand that you are now negotiating with those parties as well and address your gatekeepers' concerns as you negotiate with the buyer.

Be Transparent and Timely With Your Gatekeepers.

Given the deal terms and the leverage of the various gatekeepers, this not the time to be coy. Keep your board, investors and other interested parties constantly informed as the deal progresses. Equally as important—be upfront about what you're getting after the deal closes. The buyer will often require that your post-transaction employment terms are formally disclosed to stockholders, but it's a smart idea to communicate those terms to your gatekeepers ahead of time and avoid surprises. I have seen many entrepreneurs fail on this—and damage their reputations in the process. When expectations are not managed and interested parties are kept in the dark, things can turn ugly. Feelings get hurt, bridges can be burned and your constituents can become extremely uncooperative.

Clean out the Closet—Now.

As alluded to above, the buyers in fire sale exits tend to have a lower tolerance for risk. They will fixate on untied loose ends and will often require that all potential legal issues are fully addressed and resolved before closing. You should work with your attorney to resolve any due diligence issues ASAP. Loop in administrative resources on your end as well. Being able to quickly present the buyer with clean due diligence can really help move the process along and keep the buyer focused on closing.

Get on the Buyer's Organizational Radar.

Although this is a significant transaction for you, in most cases it's barely a blip on the buyer's radar screen. Once the letter of intent is signed and the closing process begins, your deal goes into the buyer's transaction bureaucracy. It needs to be processed by the folks across the buyer's organization: corporate development, legal, finance, tech, etc. As a result, fire sales often stall or lose momentum. Do your best to triangulate within the buyer's organization—reach out to your various contacts on a consistent basis, encourage those contacts to reach out to others on the buyer's deal team and keep pushing the deal forward.

Last updated: Jan 4, 2012

ANDRE GHARAKHANIAN | Columnist | Founding Partner, Silicon Legal

Andre Gharakhanian is the founding partner at Silicon Legal Strategy, the premier boutique law firm providing targeted, bottom-line-oriented advice to technology start-ups, innovative entrepreneurs, and seasoned investors.

The opinions expressed here by Inc.com columnists are their own, not those of Inc.com.



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