An acqui-hire basically is a fancy way to say your company is being bought predominantly for the fabulous team you have assembled and not for the product/service you were (trying) to bring to market. This can be tidier than a wind-down process for a failing company, but often signals a distressed sale. Relatively recent data suggests that most acqui-hires are of companies that have raised less than $5M of outside funding and anecdotal data suggests most of these companies were not able to get additional funding needed to continue. Often, the business acquired in the process is shut down after the transaction. Payment may be in the form of cash, buyer stock or a mix of both.
This can vary, but it is typically an acquisition of stock or assets, with the bulk of the purchase price being earmarked for employee packages (retention and otherwise). In cases where the buyer truly only wants the team, they may simply sign a release agreement where the company agrees, in exchange for the deal payment, to release the buyer for hiring the employees and possibly a defensive license agreement of the company’s IP. The term sheets are often “light” on terms. In terms of pricing, Buyers frequently express the price on a “per head” or “per engineer” basis, and the going rate seems to be anywhere from a few hundred thousand to two million per head. In many of these deals, the investors recoup less than their investment.
The acqui-hire arrangement is a mixture of Intellectual Property assignments, transfer of various web assets and an employment agreement:
1. Asset purchase of typically tech related assets of the start-up: websites, domains, etc. (Optional). Sometimes, the acquihiring entity may not be interested in any of these.
2. Intellectual property assignment in the work produced by the team (this may not always be part of the deal though). This is important if the team will continue to work on same technology or similar product and will use what they created in the start-up as a base or use a part of that technology.
3. A smooth transition of the team from one entity to another is the focus. They may be paid a joining bonus or given small stakes or ESOPs as a part of the deal. Usually, their compensation is the main focus of the negotiations.
4. Consideration for all the work and the assets mentioned above, it can be a lump sum amount that can be paid to the promoters. Usually, investors and founders don’t get much out of such a transaction though. Founders are usually glad that their team is going to be gainfully employed and not face uncertainty and that they may get to work together on interesting projects. Often that is the biggest takeaway for the start-up founders.
The deal structure discussed above works irrespective of what business structure the target company uses. If it is a private limited company, it is not essential for its shares to be acquired by the acquirer. However, this decision is mainly dependent on any stamp duty or tax benefit for the companies involved.
Further, it goes unsaid that the target company has no debts or they are repaid by the time it is getting acquired or the acquirer is well aware of these debts and has agreed to pay them or the promoters will make sure that they repay the debts on their own. If the target company is not being acquired, liabilities may remain in that entity and simply the team is hired by the acquihiring company which therefore takes no responsibility for existing debts of the target. Several employment contracts are also executed of all the team members of the acquiring company, there are several terms mentioned in these contracts:
1. A minimum period of employment clause (say one or two years)
2. A non-compete clause for the promoters
3. Vesting of the acquirer’s or its parent company’s shares
What kind of a deal structure are we talking about?
The deal structure mainly depends on how valuable the new technology is to the company and what it brings to the table. The start-ups are typically acquired on a price that is lesser than their valuation. These structures can be of various forms:
1. They can be cash deals (here) or
2. Founders are made to run their start-ups as a subsidiary of the big business house (here). This however is quite unusual in acquihiring scenario.
Other aspects regarding the deal
There must be an approval from the board of directors and management from the Acquirer’s company. However, even this is not always necessary. One may simply hire the employees for executing acquihiring provided that the acquiring company is not interested in anything else other than the talent. Even the technology from the old company can be acquired if necessary by executing a simple assignment contract which may or may not require board and shareholders’ approval depending on what is written in constitutional documents of the company (AoA) and Shareholders’ Agreement, if any.
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