You can negotiate anything you want, and I'm not joking or being sarcastic about it.
A lot of people in this thread will say: well, it's unusual or non-standard to do x y z. Good. Most of the interest a company receives re acquisition is going to be pure bullshit at best and malevolent at worst. Ideally you cause the majority of both types to turn tail and run away immediately. If you're not careful you'll waste an enormous amount of valuable time dealing with bogus acquisition (and partnership) interest. Big companies waste a lot of time and money screwing around with: let's make a deal; they can afford it.
The break-up fee should not be layered under 27 conditionals. As someone pointed out, the acquiring company will bury you under a mountain of difficult to fight legal justifications to get out of the break-up fee if they can. And they're almost always going to be far stronger financially than you are.
A fee is going into the company bank account no matter what, without conditions, if you want to get serious about an acquisition. You're going to pay us for our time - risk, legal costs, etc. - if you're serious. The mental approach is simple: don't like the arrangement? Fuck off right now so I can get back to running my business. That's not standard? Too bad. It's your business, you can do anything you want to in that respect. Don't let people tell you that you can't do it, you certainly can. If a company is very serious about buying you, they won't run away if you put this on the table up front, they'll be willing to discuss it at least.
Thanks for the reply, I agree with you. Parenthetically, I know you can negotiate anything you want. I went to law school (though never practiced) and I find one of the common misconceptions is that contracts are these highly fomulaic documents with no room for creativity. The reality is, as you say, that you can put whatever you want in there. Contract law is mostly about enforcing the freely-negotiated agreements between parties. I wrote a lot of contracts that were highly specific to the scenarios in question and there was a ton of creativity - only trick was to use very precise language (verbose bordering on annoying).
My question was more whether this is something that is done in such contexts, namely smallish acquisitions. I think you're right that Baremetrics made a mistake here in not insisting on some of the things you mentioned.
A lot of people in this thread will say: well, it's unusual or non-standard to do x y z. Good. Most of the interest a company receives re acquisition is going to be pure bullshit at best and malevolent at worst. Ideally you cause the majority of both types to turn tail and run away immediately. If you're not careful you'll waste an enormous amount of valuable time dealing with bogus acquisition (and partnership) interest. Big companies waste a lot of time and money screwing around with: let's make a deal; they can afford it.
The break-up fee should not be layered under 27 conditionals. As someone pointed out, the acquiring company will bury you under a mountain of difficult to fight legal justifications to get out of the break-up fee if they can. And they're almost always going to be far stronger financially than you are.
A fee is going into the company bank account no matter what, without conditions, if you want to get serious about an acquisition. You're going to pay us for our time - risk, legal costs, etc. - if you're serious. The mental approach is simple: don't like the arrangement? Fuck off right now so I can get back to running my business. That's not standard? Too bad. It's your business, you can do anything you want to in that respect. Don't let people tell you that you can't do it, you certainly can. If a company is very serious about buying you, they won't run away if you put this on the table up front, they'll be willing to discuss it at least.