How to Negotiate Term Sheets with Strategic Investors

How to Negotiate Term Sheets with Strategic Investors

Three years ago, I met with a founder who had raised a massive seed round at a valuation that was at least five times the market rate. I asked what firm made the investment. She said it was not a traditional venture firm, but rather a strategic investor that not only had no ties to her space, but also had no prior investment experience. The strategic investor, she said, was looking to “get their hands dirty” and “get in on the ground floor.” 

Over the next 2 years, I kept a close eye on the founder. Although she had enough capital to pivot her business focus multiple times, she seemed to be at odds,serving the needs of her strategic investor and her customer base. 

Ultimately, when the business needed more capital to survive, the strategic investor didn’t agree with the founder’s focus, opted not to prop it up, and the business had to shut down. 

Sadly, this is not an uncommon story as examples abound of strategic investors influencing startup direction and management decisions to the point of harm for the startup. Corporate strategics, not to be confused with dedicated funds focused on financial returns like a traditional venture investor like Google Ventures, often care less about return on investment, and more about a startup’s focus, and sector specificity. If corporate imperatives change, the strategic may cease to be the right partner or could push the startup in a challenging direction.

And yet, fortunately, as the disruptive power of technology is being unleashed on nearly every major industry, strategic investors are now getting smarter, both in terms of how they invest and how they partner with entrepreneurs. From making strong acquisitive plays (i.e. GM’s purchase of Cruise Automation or Toyota’s early stage investment in Uber) to building dedicated funds, to executing commercial agreements in tandem with capital investment, strategics are getting more savvy, and by extension, becoming better partners.  In some instances, they may be the best partner.

Negotiating a term sheet with a strategic investor necessitates a different set of considerations. Namely: the preference for a strategic to facilitate commercial milestones for the startup, a cautious approach to avoid the “over-valuation” trap, an acute focus on information rights, and the limitation of non-compete provisions.

 

Strategics must facilitate commercial milestones.

The best strategic investors are those that drive specific and relevant commercial milestones for your business. Essentially, this means basing the investment on a long-term commercial contract, at market rates, to deploy your product across the strategic investor’s business. The strategic should be looking to do this as well because, as well – an investor first and foremost – their own traction will power the growth in valuation of their investment.

For example, if your business is in the healthcare space, you should have a long-term commercial deal to deploy your product across different segments of the investors’ business to capture the most long term value. A good example of this is Ascension Ventures’ investment in Ingenious Med, which came in tandem with a long term rollout across all of Ascension’s health system Limited Partners. 

However, this comes with a catch! The Pilot Agreement. What you may be think is the biggest break in your company’s nascent history is actually a bit of a trap as strategic partners may disguise a pilot or test agreement as a commercial agreement. Often, these pilots are unpaid or at significantly discounted rates with no guarantee of long-term sustainability. More importantly, there is an acute risk that a strategic may exercise undue influence over a product and build one that is specifically dedicated for them rather than one that can scale for the entirety of the market. 

What should you look out for in an agreement? It should contain a significant amount of detail, which can help drive greater accountability. Make sure the agreement has specific terms and agreements, the desired outcome, copyrights and ownership, license and acceptable use, disclaimers, confidentiality, and the timeline for deployment. All at the scale that matters to you.

 

Avoid the over-valuation trap.

Historically, strategic investors may not have been as valuation sensitive in negotiations because they are judged on the strategic value of the investment and not on Internal Rate of Return (IRR) as traditional venture investors.

With strategics, this can have some inverse and troubling consequences. For instance, about two years ago, I met a media startup from Hong Kong raised capital at a $100 Million valuation on only $1.5 million in revenue from one inexperienced strategic investor. Unable to raise capital at that valuation, the founders had to take a significant devaluation in ownership to sustain the business. 

Before starting negotiations with a strategic, do your research and seek to understand as many comparable valuations in your space as possible. Valuation is often more art than science. Only accept market rate valuation, accounting for traction, technology stack, and team from investors.

Look for financial angels to put in capital or at least evaluate your business in comparison to the market rate. For example, Casper, the mattress startup, took in funding from traditional financial angels before accepting investment from the retailer Target. By looking to financial angels and even early stage investors to value the business, they prevented any risk of over-valuation. 

 

Beware of information rights and board seats.

If the investment is sizable enough, then the strategic investor may want to sit on your board. This position gives the strategic investor access to information rights over the most important developments in your business, including relationships with possible competitors. 

While you should be open to the idea of having the strategic investor join your board as part of the negotiation process, it is important to learn more about their intentions and objectives for joining. The position should be beneficial for both parties and include the ability to leverage the strategic investor’s expertise, connections, and knowledge in exchange for the information rights.

If a full board seat is too much to consider, one possible alternative is to provide the strategic investor with board observer rights. This position provides the strategic with the ability to sit in and listen to board meetings without the ability to vote as a member of the board, as they may also be looking to get insight into the company’s future intention – and see where they may compete with the strategic.

But again, as Mark Suster’s excellent article here references, there are risks even in this strategy.  Specifically as startups attempt to seek consensus, the board observers can have more sway on the vote than if they were to have a formal board seat. 

One way to possibly prevent this is to include a recusal right for the strategic’s board position in regards to sensitive matters. These could include discussions with a potential direct competitor to the strategic investor, a shift in the focus of the business, or any other sensitive information. For example, if a competitor business to the strategic investor wants to come in and be a customer, the strategic could excuse themselves from those discussions to avoid any potential conflicts of interest. Strategic investors are intelligent enough to understand the necessity of this provision and often welcome it in negotiations.  

 

Look out for broad non-compete provisions.

If a strategic investor agrees to an investment and a long-term contract, they may ask for non-compete provisions in their term sheet to protect their business. While you may be aware of non-competes and their applicability to employees – and their attendant unenforceability in states like California, these provisions also apply to strategic investors and joint venture partners. For example, a non-compete clause may prohibit a startup from working with a competitor (or even taking investments from one). The non-compete could also extend to a potential acquisition by a competitor. 

Plainly, you must seek to strike non-compete provisions completely from the term sheet, especially if one of the provisions relates to potential acquisitions. The easiest argument towards this is simple: a non-compete provision effectively limits the strategic’s own upside potential. Since a strategic investor is seeking a return by investing in your startup, remember that this type of provision would put a limit on the liquidity value of the business and therefore on their ROI.

 

Strategic investors may be the best partner.

As strategic investors get increasingly savvy about startup fundraising and capital, given the right circumstance, they may be the best partner for your early stage company. The recent exits of Zoom and Lyft, both of whom had a strong strategic investor presence in Qualcomm and General Motors respectively, relatively early in both companies’ histories, indicate how the tide is shifting. While great negotiation skills can ensure that non-compete provisions and information rights will not trip up your business down the road, if you can make investment contingent on a long-term commercial contract and adoption of your product, you will set your business up for the best long term success. What type of success? To raise capital again of course, at a much higher and justified valuation.


Read the full article on TechCrunch.com:
How to negotiate term sheets with strategic investors

Source: TechCrunch.com By Alex Gold


How to Use Psychology to Get Investors to Close When You Want Them to

How to Use Psychology to Get Investors to Close When You Want Them to

Deadlines can trigger FOMO and FOMO can trigger signing the papers.

The night before Demo Day, my co-founder and I were sitting in a drab hotel room next to the Computer History Museum in Mountain View, Calif. Deciding that the extra precious minutes to practice our three-minute pitch for the next day justified springing for the cost of the hotel, my co-founder and I carved out five hours to fine-tune a pitch that had gone through at least 20 revisions and was about to go through at least 40 more.

The only catch was that we kept getting phone calls from investors throughout the night and into the next morning.

“I know we met two weeks ago, and I was dragging my feet, but I want to commit now,” said one.

“Look, you may not have any more room, but I want to get in at this valuation right now,” said another.

This continued as my co-founder and I closed several hundred thousand dollars’ worth of capital within several hours. All the while, we kept asking, “Why?” Why, after we had met with these angels and firms for the past six weeks, were so many committing the night before Demo Day?

We had struggled for weeks with cash flow, attempting to get investors to commit when it was good for the business. We had failed repeatedly; now, they were suddenly interested — so eager to commit at 1:00 a.m.?

It turned out we were bumping up against a major third party-verified deadline.

Something neither investors nor entrepreneurs can control

The third party-verified deadline is one of the easiest ways to get investors to close on your schedule. Essentially, it’s an event-, holiday- or calendar-based function that the entrepreneurs themselves cannot control but must adhere to for business reasons.

This deadline is a literal “line in the sand” that can help you force a close at a specific valuation because investors will know you cannot give them more time or make extensions.

After our Demo Day presentation, the company’s valuation was going up by more than 40 percent. Many investors waited until the last possible minute to get in because they knew we couldn’t extend the deadline set by our accelerator program.

Conversely, it’s been my experience that if we had just told investors our closing deadline was at the end of the week or month — arbitrarily set by us — they would continue to drag their feet because we’d set the deadline.

How to create your own third party-verified deadline

Closing investors on your timeline is a critical skill for any entrepreneur. After all, as founder, you know what’s best for your business and have dedicated plans for hiring, expansion and cash flow that require capital commitments at specific junctures.

Unfortunately, many investors don’t think that way. Their currency is time. The more time they have to assess the business and ask the opinions of potential customers, partners and other investors, the more power they have in terms of doing their due diligence and driving a better deal.

And while not everyone has an accelerator program-sponsored Demo Day to turn the tide, there are some key ways you can create your own third party-verified deadline to turn the tables and close investors when it matters most to your business.

Step 1: Create FOMO by stacking meetings.

The first step is to create investor FOMO –fear of missing out — by planning to engage as many investors as possible in a short period of time. Rather than meet with a handful of investors in the weeks and months before you wish to close, set a hard timeline to meet with as many as possible in the two weeks before you wish to close.

Investors gossip more than Regina George in “Mean Girls.” By stacking meetings, you’re more likely to be at the top of investors’ minds as they circle like sharks.

Step 2: Pick a third party-verified date.

Once you have your meetings planned, pick a date set by a third party. No Demo Day? No problem!

A tax filing deadline works just fine because it’s often the case that a company may not be able to accept capital after that date has passed. National holidays also work extremely well.

Additionally, the last day of the year is also a good option. Once you have your date, tell this to investors — and stick to it.

Step 3: Gamify with an incentive.

To get investors to close on your timeline, they need to be provided an incentive that’s at immediate risk of loss.

Operating on the concept of loss prevention, investors will often accelerate their exposure and their review of your business to come to a decision much faster than normal. Good examples of this include a lower or more attractive valuation that’s at immediate risk of increase or the hiring of critical staff.

Remember, the third party-verified deadline only works if the date and time are set by a third party — not you. There are natural and often convenient real-world cutoff points that you can leverage simply by integrating them into your planning. Don’t waste your time by creating your own deadlines that investors have no good reason to follow.


Read the full article on Entrepreneur.com:
How to Use Psychology to Get Investors to Close When You Want Them to

Deadlines can trigger FOMO and FOMO can trigger signing the papers.
Source: Entrepreneur.com By Alex Gold