Hearing many horror stories over backing out at last minute, I wonder why breakup fees and escrow are not more popular in startup world.
E.g. if you would like to acquire for $5mln you need to deposit $100k. If you walk out, this is a breakup fee. If startup bails it also have to pay same amount to the acquire.
Part of any acquisition is getting a look at your books.
Now the buyer knows exactly how much runway you have left and all they have to do is drag their feet until you get desperate to make a deal.
Either you have to be cashflow positive, or keep at least two buyers on the hook past whatever disclosure phase nets them this sort of information. I think maybe one company I ever worked for was clever and healthy enough to do this. And even on that one, things went a bit touch and go. One of the worst kludges we ever did, it came out later, was worth a month of payroll, which got us through that acquisition without bouncing checks.
(Still the longest single method body I've seen a human create, and from someone I thought would never write code like that.)
Horrible messy business logic to fulfill a short term contract. It's been a long time, but if memory serves it was used for data ingestion. The file was 6000 lines, the worst method was over a third of that, closer to half.
It never really worked, as some of us predicted while the project was being ramped up. Without going into too much detail (most of which has gone from my head anyway), the speed of light won and we used a different architecture which obsoleted most of that code.
However, if I and the other people who said it couldn't be done had gotten our way, that sale would have gone much worse for us. Decisions from incomplete data and all that jazz. It went live and the customer and we cashed the check with less than two months of operating capital left, while the lawyers were still futzing around with term sheets.
The irony is this was also the owner who thought he was rallying the troops and instead filled us with existential dread every time he tried to give us a speech. Why I wasn't aware we were scraping bottom of the barrel until six months later, I'll never know.
Similar to a home purchase...and I imagine that even with an immaculate company or home you can always find something to satisfy that clause and give you an out.
Unless you’re in England, where people can drop out or change their price on a house sale or purchase at any time, even after months of legal red tape.
English process of buying a house is an equivalent of 5 seconds film thst is being played in slow-mo for 20 hours. Again, England has some very odd land nad property ownership types thst simply don't exist anywhere else in the world and usually complicate the process a lot. Regardless of it, the lawyer are alway the winners on this one.
What would you spend months on when buying a house? Over here (NL) a buyer inspection is a 30 minute affair. Then you sign a purchase contract straight away, three days to back out.
Oh it’s insane. You’ve never seen a process like it. Nothing happens, but it takes forever. Half of the sale chains fall apart during the wait. Brexit delays seem a whole lot more obvious in that context.
Tye typical reason for long closings, at least in the US, is sale contingencies and financing. If sale of your existing home is contingent on closing on your new home, and that sale is contingent on another closing, things can take awhile to sort out (and not much time at all to blow up).
Financing can also take quite a long time, especially if you have a non-traditional income stream (i.e. you're a startup founder).
A buyer who doesn't have the money now, doesn't have the money. The only reason to humor such people is if you have the asset priced too high. In that case, those might be the only people interested...
In the UK, ordinary families don't have access to large amounts of ready cash - the money they intend to spend on your house is currently tied up in their existing house. So if you want the deepest pool of buyers (& hence to realise the best price for your property) you have to accept being part of a chain of house buyers, all of whom need to perform a dance where they simultaneously sell their houses to each other in order to raise the cash they need to buy the next property in the chain.
It should be unsurprising that this process is widely regarded to be more stressful than anything other than death in the family or divorce.
If my inspector was done in 30 minutes, I'd tell him to go home and hire a different one.
That being said, it depends on where you are. Some places it can take a week to go from first seeing to buying, other places it can take months. Some places, closing costs are a few thousand, some they are 15k. There's a lot of variety across places even in the same state in the US.
In NL as well. It is not rare at all to do a 'bouwkundige inspectie', that is definitely not a 30 minute affair depending on the kind of building. People doing their own inspections tend to overlook important things.
A contract is only worth as much as you are willing to pay to enforce it. It makes sense to pay an army of lawyers for years to pursue a $100m breakup fee. For $100k, not so much.
The solution though is escrow. Upon agreement, you have them wire the money to an escrow agent. If they back out, the escrow goes to you. There's no need for follow-on lawyering. (And no, no escrow agent worthwhile is going to be pressured easily into giving a large corporation their $100k back).
A company sales can go wrong for many reasons, how do you differentiate between a legitimate reason to not proceed to the sale and a "last minute backing out"?
I assume that's what a LOI (which is all that the founder had) is for: it comes before any legally binding agreements and allows both parties to be sure they get what they want without bad surprises.
Most high-reputation firms wouldn't hesitate to leave a poor founder swinging in the wind. What's she going to do, sue them? Any lawyer capable of handling that case, the M&A dudes already have on retainer.
E.g. if you would like to acquire for $5mln you need to deposit $100k. If you walk out, this is a breakup fee. If startup bails it also have to pay same amount to the acquire.