BizzBangBuzz by deal attorney & business lawyer, Anthony Cerminaro

2/06/2008

So Want to Be Acquired by Google?

This article from Fenwick & West is written for the directors and executives of emerging technology companies (referred to as TechCos) who are considering selling their company to a larger, more sophisticated company (referred to as LargeCo).

TechCos are privately held companies that exploit something new (technology, products or niche markets), experience rapid change (growth, market, profitability or cash flow) and typically are short on infrastructure and capital resources. These TechCo characteristics create special issues when TechCo decides to be acquired by LargeCo.

The article summarizes TechCo’s key issues when it prepares for and negotiates a successful sale of its business to LargeCo. Before they begin acquisition negotiations, the article can help TechCo’s executives frame the issues of importance to them. During negotiations, it can be a useful resource to TechCo’s executives for evaluating and responding to LargeCo’s proposals.

The article is divided into five sections. The “Introduction” explains why companies merge or are acquired and what factors lead to successful and unsuccessful acquisitions. “Deciding To Be Acquired” explains why companies may decide it is preferable to be acquired instead of going public, and when TechCo should consider being acquired. “Key Deal Issues” outlines the key deal issues from both LargeCo’s and TechCo’s perspectives.

“Troubled Company M&A Issues” highlights employee retention issues when TechCo is valued at less than its liquidation preference as well as special issues when TechCo is near insolvency. “Implementing The Deal” outlines the mechanics necessary to close a typical acquisition. The article concludes with two appendices. Appendix A is a sample Letter of Intent for a merger, illustrating typical provisions requested by LargeCo. Appendix B is a sample Time and Responsibility Schedule for a merger being accomplished pursuant to a Form S-4 Registration Statement."

(the text of this post is based on a booklet form of the article available on the Fenwick and West website)

My Favorite SuperBowl Ad

The screaming grasshopper rocks even though you can barely hear it.

Tyree-fic Catch of the Century

the Fine Art of Schmoozing

This article by Bruce L. Katcher offers valuable tips for making the most of your networking meeting opportunities, including the following:

"Your professional network is one of your most valuable assets. Professional networking meetings are one of the best ways to continually revitalize and grow your network. But if you attend meetings without a clear strategy for maximizing their value, you may end up as a wall-flower, merely watching other people network and wondering why you gave up the time in the first place...

Here are seven ways to maximize the value of professional networking meetings.

1. Be Strategic about Which Meetings You Attend...Three types of professional networking groups offer different benefits:

Join a group that will enable you to keep abreast of the latest developments in your field.
Join a career networking group that will enable you to learn more about self-marketing, interviewing, and making a successful transition.
Join a group that will allow you to interact with prospective employers and clients.

2. Become Active...Once you become active, people in the association get to know who you are and what you do...Try to get involved in activities that will enable you to interact with others...Get to know the movers and shakers. Each association has a few key people who know everybody else and can make things happen.

3. Come to networking meetings with the mindset of, "how can I help others at the meeting," or "I would like to meet at least one person tonight who I can meet with one-on-one," or "I am really curious about what others at this meeting do for a living." There are many ways you can help others. You can provide introductions; recommend books or web sites; provide information about people, companies, or trends; or simply listen and offer emotional support.

4. Ask Questions...Simple open-ended questions are best such as, "Tell me what you do for a living," or "What challenges is your business facing these days?" This can be a great way to start and maintain meaningful conversations. Come to the meeting with an inquisitive attitude.

5. Come Early and Stay Late...

6. Follow-up Immediately...

7. Don’t Try to Sell...Selling at professional meetings is usually inappropriate. Instead, use the meeting as an opportunity to develop a relationship and schedule a meeting for a later date."

Much more on business networking is available at Networking Advice: The Riley Guide and this About.com webpage.

Power Use Drops During Super Bowl

"Is there a drop in demand for electricity when the Super Bowl kicks off, as people stop what they’re doing and gather around the TV? Ted Borer, [Princeton] University’s energy plant manager, was curious. 'I’d always heard of this, as an urban legend,' Borer says, “and I thought, ‘I have the tools to confirm this.’

"On Feb. 5, 2006, when the Seattle Seahawks and Pittsburgh Steelers faced off in Super Bowl XL, Borer tracked the power data from the Pennsylvania, New Jersey, and Maryland grid during the game along with the power demand on Princeton’s campus. The results, seen on the graph below, are striking: Within one minute of the game’s start, power use on campus dropped 6 percent. 'We rarely see that dramatic a change,' Borer says.

"Power use spiked during commercial breaks, as people reheated their nachos, opened the refrigerator to grab another drink, or flushed the toilet (triggering utility company pumps). While the pattern is similar for both the campus and the wider grid, Princeton’s power use showed two notable differences from the community at large. Students seemed more interested in the halftime show (in 2006, the Rolling Stones performed), and after the game, when the rest of the region turned off the lights and headed to bed, power use on campus began to climb. Borer suspects that the postgame jump comes from students returning to their rooms and turning on their computers for a little late-night studying."

from the PAW The Weekly Blog.

How Do You Measure Up as a CEO?

"(rate performance on a 1-5 scale, 1 being least favorable and 5 being most favorabl...):

"Vision: Creates vision and strategy. Communicates vision and strategy both internally and externally.

"Leadership: Ensures the support and execution of the vision and strategy by:

"Establishment and communication of priorities;

Driving change for improvement throughout the organization;
Team-building; and
Creation of high performance environment.

"Operating Management: Develops and executes sound long-term and annual business plans in support of approved strategy. Manages operations and resources efficiently and effectively.

"Values and Integrity: Maintains consistent values and exemplary conduct. Promotes positive corporate culture to reflect corporate mission statement.

"Shareholder/Investor/Financial Community: Serves as chief spokesperson, communicating effectively with shareholders and stakeholders. Is well regarded and respected by investment and financial community.

"Strategic Partners: Maintains personal rapport with strategic partners through open, ongoing communications

"Human Resources: Ensures the development of effective employee recruitment, training, and plans and programs to provide and motivate the human resources necessary to achieve objectives.

"Public Relations: Ensures that the company and its operating units contribute appropriately to the well being of their communities and industries. Represents the company in community and industry affairs.

"Board Relations: Works effectively with the Board of Directors to keep them fully informed on all important aspects of the status and development of the Company. Facilitates the Board's governance, compositions, and committee structure. Implements Board policies and recommends policies for Board consideration. Supports a relationship characterized by trust, mutual respect, open communication and responsiveness to feedback. Uses Board meetings effectively.

"Financial Results: Financial Results – Establishes appropriate annual and long-term financial objectives and manages to consistently achieve these goals; ensures that appropriate systems are maintained to protect assets and maintain effective control of operations."

From this Seth Levine post.

the Open Source Infection Myth

"Most people now recognize that it is indeed safe to build commercial products on open source platforms. Regardless of the license, open source software doesn’t reach out to “infect” other software or hardware in ways that destroy the commercial viability of those commercial products, despite early FUD to that effect. Companies can safely write applications that run on top of any operating system, virtual machine, web browser, or other open source platform, without risking their own code. Most companies already do just that.

"Of course, care must be taken to follow the rules of the open source licenses that apply to the platform itself, particularly when copies of the platform are delivered to customers along with the commercial product. Free software doesn’t imply that there can be a free-for-all attitude toward respecting the intellectual property embodied in open source platform software.

"For many purposes, an analysis of the interaction between a commercial product and the open source platform on which it is built must start by understanding the dividing line (if any) between them. It is helpful to begin with an architectural diagram of the commercial product that clearly indicates what functions are performed by the platform and what functions are performed by the unique and perhaps proprietary software or hardware of the commercial product.

"The reason for this software architectural diagram is obvious: As long as the software works are independent in the copyright sense, any product developments on the platform side of the dividing line are subject to its open source copyright license, while the commercial side of the line is yours to license as you wish...

"The old models of commercial software product development are no longer sustainable. No company can afford today to start with a blank slate for its software-based products, and more and more companies are discovering that it is far cheaper to build on top of low-cost open source platforms than on proprietary ones.

"Among the costs of that free open source software, however, are: (1) diligent analysis to understand how your commercial products interact with the open source platform you use; (2) commitment to reciprocate whenever it is ethical or required by license to do so; and (3) effective policies and practices that allow your company to both take from and give back to the open source software commons."

Read more in an article by Jeffrey Rosen for PLI from which the foregoing was quoted.

a Tax Disclaimer for My Next Life

Please note hereby that, in accordance with archaic and arcane federal and state standards, policies, procedures and regulations, which may or may not be applicable, as the case may be, or not to be, Anthony Cerminaro does not offer any advice on personal or impersonal tax questions, requirements or issues. On sports, relationships and merry making - perhaps - but not on taxes.

Anything resembling useful tax-related information you receive via this website, or otherwise appertaining or pursuant thereto, is accidental, and provided for general, hypothetical and philosophical purposes only, and does not represent tax advice either express, local or implied. And you certainly may not use the said same for any unwholesome purposes.

You are encouraged to seek professional help, er, I mean, tax advice for income tax questions and assistance.

Why does Toyota Encourage Insurance Fraud?

I am heartened to find that I am not the only person confused by the most recent Toyota ad campaign that encourages consumers to commit insurance fraud by destroying their current rides and using the proceeds of bogus insurance claims to purchase new vehicles.

The ads are inane and not even that funny. Case in point -a wholesome American family bonds by pushing a huge boulder over a cliff onto an unsuspecting road runner, I mean, Four-Runner. What a riot!

Come Alive in the New Year

Join forces with the dynamic flow of life. The African-American theologian Howard Thurman said: "Don't ask what the world needs. Ask what makes you come alive, and go do it. Because what the world needs are people who have come alive."

And so, as the old year changes into the New Year, ask what makes you come alive, and then go do it--for your own sake, and in service of the greater good.

One of five ways to welcome change in the new year from this Beliefnet.com piece. Here are the other four together with a relevant quotation from the article

1. Expect Change

Since we live in a changing universe, expect change. Good change, difficult change, destructive change, transformative change.

2. Make Friends With Change

Try not to fight change. Make unconditional friendship with it, in whatever form it arrives.

3. Relax Into the Mystery

There is so much more to this life than we can ever understand through our tiny brains and fearful hearts. So in times of big change, it's good to be gentle and kind and patient with yourself. And to relax. The best peacemakers are those who are at peace with themselves.

4. Receive Change's Message

Be still and listen deeply for the truth that is carried on its winds--information about the past, wisdom about the present, and direction for the future.

"Walking on the turning wheel of the earth, living under the ever-rotating sun, man expects a peaceful life."

--Sufi master, Hazrat Inayat Khan

Christmas across the Commons

A&P, COFFEE, SANTA CLAUS
from George Eastman House

On Flickr, you can check out public domain photos tagged with "christmas" from the collections of George Eastman House, State Library of New South Wales, Nationaal Archief, and The Library of Congress.

Press On with Persistence

"Nothing in the world can take the place of Persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. The slogan 'Press On' has solved and always will solve the problems of the human race."

---Calvin Coolidge

From Motivational Quotes of the Day for December 30, 2007

Guide to Building a Website

Want to join the business boomtown on the Web but don’t know where to start or how to get it done? This guide from startupNation.com takes you from concept to completion.

1 Plan Your Web Presence
2 Choose DIY or Go with a Pro
3 Select the Tools for Making Your Home on the Web
4 Make Key Design Decisions
5 Learn the Code (But Only What You Must)
6 Identify the Best Software for Words & Images
7 Take Control Over the Look, Feel and Function
8 Optimize Your Site for Search Engines
9 Put All the Parts Together
10 Take your Website Live!
11 Constantly Tend to Your Web Site

Wanted: Courageous Followers

“Followership is a discipline of supporting leaders and helping them to lead well. It is not submission, but the wise and good care of leaders, done out of a sense of gratitude for their willingness to take on the responsibilities of leadership, and a sense of hope and faith in their abilities and potential.”

--Reverend Paul Beedle

"The movement away from command and control leadership has brought new leadership styles that are more democratic and coach-like. The terms “shared leadership,” and “servant leader” are used to describe some of these new ways of interacting. There are also new ways of interacting in the follower role...

"In his book (The Courageous Follower, 2003) Ira Chaleff points out... that curageous followers help leaders stay on track and manage their decision-making processes in the right direction...When both the leader and follower are focused on the common purpose a new relationship between them arises. This new relationship is candid, respectful, supportive and challenging. It is a relationship that honors open communication, honesty and trust from both parties...

"According to Chaleff, there are three things we need to understand in order to fully assume responsibility as followers.

Understand our power and how to use it...
Appreciate the value of the leader and the contributions he or she makes to forward the organization’s mission...
Work toward minimizing the pitfalls of power by helping the leader to remain on track ...

"Chaleff identifies and defines what is required of followers to become an equal partner with the leader in fulfilling the purpose of the organization.

The Courage to Assume Responsibility....
The Courage to Serve...
The Courage to Challenge...
The Courage to Participate in Transformation...
The Courage to Take Moral Action. Courageous followers know when it is time to take a stand that is different from the leader's. The stand may involve refusing to obey a direct order, appealing the order to the next level of authority, or tendering one's resignation. This may involve personal risk but service to the common purpose justifies and sometimes demands such action..."

Read more in Notes for Followership from which the foregoing is quoted.

Got Venture?

"Mark Davis - a member of the DFJ Gotham - has written a very extensive series of posts on his blog titled Get Venture. Mark describes his goal as to "create the entrepreneur's manual for raising venture capital." He's covered a lot of ground that is a good read for any entrepreneur looking to raise venture capital."

See this Ask The VC post, from which the foregoing is quoted, for active links to the material.

Passion, Commitment, Persistence

Ingrid Vanderveldt is an expert in entrepreneurship. Through her Entrepreneurial Blueprint, she's helped many businesspeople network and find their strategy. She's also been the host of CNBC's "American Made," an interview series with business icons. Here Vanderfelt talks [to BNET.com] about the common traits she see in all success stories: passion, commitment, and persistence.

Never Answer the Valuation Question with a Specific Number

"Never answer the classic VC question "so, what valuation are you looking for?" with a specific number.

"Got that? Never!..."

Find out why not at this post from Soaring on Ridgelift found via this Ask The VC post.

Startup Marketing

"Donna Novitsky talks about developing a marketing strategy for a start-up. She addresses key issues about segmenting customer priorities and their pain-points; and building a competitive strategy. Novitsky notes that customers are the biggest marketers for an organization. She also illustrates from her personal experience about partnering with other players to generate mutual benefits."

From Stanford's Educators Corner

Classic Christmas Blend

I was thinking the other day that a wonderful epitaph might be, "He loved Christmas music." So here is a link to my Imeem collection of holiday music, a Classic Christmas Blend.