Archive for the ‘Entrepreneur’ Category

Unintended Consequences: When SAFE and Convertible Notes Go Awry

Andrew Krowne and I recently co-wrote an article in Tech Crunch, Why SAFE Notes Are Not Safe for Entrepreneurs. We’ve received numerous constructive comments, both privately and on social media, from attorneys, VCs, and CEOs who are well aware of the problem (including several who are experiencing it in real time).

This is a fundamental issue that does, indeed, boil down to understanding the post-money valuation of a company. But it is also a topic that many find esoteric and difficult to grasp.

To restate two core points of the article:

While there are proper uses of notes (to bridge the company to achieve a major milestone, or driven by insiders’ willingness to extend runway), there also are troubling and frequent improper uses (to postpone pricing equity until valuation is higher or to ignore the implicit message associated with being unable to find a lead investor to price the round on terms that the founders like).

 At its core, this issue points to the lack of understanding about the importance of post-money valuation by both entrepreneurs and investors. While VC deals remain marketed on a pre-money basis, sophisticated investors know that what matters most is the post-money (how much of the company will I own after all of the new shares have been issued). Unfortunately, what the CEO/founder forgets most often is that the notes have a multiplier effect in the post-money calculation; the more notes and the further the cap is from the new priced equity, the greater the variance between actual and nominal pre- and post-money valuations.

There is nothing wrong with using a SAFE or a convertible note in a startup if you know its implications. However, many VCs experience vexing discussions with CEOs, and many CEOs belatedly realize that this is because they made a mistake: issuing multiple series of notes at various valuation caps without actually sitting down and figuring out the pro forma post-conversion equity ownership.

This is not uncommon—and it is a problem precisely because the notes are being used improperly. The most serious unintended consequence occurs from “note waterfalls”— converting multiple notes that have multiple valuation caps.

Many entrepreneurs lose track of what they have been cooking up in the cap table. They do not recognize that they may have already contractually sold a meaningful portion of equity in their company.

When it comes time to convert the notes, these entrepreneurs face ‘sticker shock’ about their post-financing ownership. That’s only one result of mismanaged expectations dating back to when the notes were issued!

The following scenarios represent typical recipes for trouble:

  • Company X is early in business development, has a near-term need for capital to get through the next 3-6 months, and the management team has no understanding of how the equity should be divided up among its various constituencies (this includes option pools and what ownership stakes investors typically require at various development stages).
  • Company Y receives an offer from an angel or ‘unsophisticated’ smaller VC fund that is unwilling to lead and price the equity but wants to ‘invest now’.   The easiest way to do so is via SAFE notes, due to their simplicity, “available online” documentation, no major covenants established to protect the investors, no governance implications at the board level, etc. All of these items are postponed until the elusive priced equity round. “It’s going to be great!”
  • Issuing notes eases the burden of getting several investors to commit simultaneously and solves the ‘chicken-or-the-egg’ issue by creating a rolling close that financially benefits the earliest movers with more attractive financial terms. In contrast, there is limited benefit for being the 2nd investor or the 10th investor joining the syndicate of a priced round, so it is common for investors to wait to see “who else is involved”.
  • The CEO/founder often has leeway to influence or negotiate the cap value (especially when the headline cap is softened by a discount). This is very common when the company is still in its infancy and the valuation goalposts remain distant. A much larger problem arises when subsequent ‘series’ of notes are issued, especially if each successive series has a higher valuation cap. CEOs and unsophisticated investors very often start anchoring the caps to what they think the company could be worth, all without external validation. In these cases the caps can easily diverge from the true number at which a company could raise sufficient equity to provide at least 18 months of runway with no revenue (a normal VC round).

The bottom line: Startup CEOs/Founders need to do the projected capitalization table math on an as-converted, post-money basis from Day 1, before issuing any notes and modeling various possible future scenarios. It will be worth the time and effort.

Make sure you understand what you are doing now so that you are not negatively surprised in the future. Sound simple? Yes, and it’s a lot simpler than making your startup grow into a successful company. Now go do it.

How to Build a Global Center of Innovation Excellence in Salzburg, Austria

Pascal Levensohn Salzburg

 

 

 

 

 

 

 

 (c) Blowup Salzburg / Fachhochschule Salzburg

I recently joined the Advisory Board to Gerhard Blechinger, the Rector of the FachHochschule Salzburg, (the Salzburg University of Applied Sciences) and became a guest lecturer on Entrepreneurship at the University.  My inaugural keynote lecture focused on the challenges and opportunities for Salzburg to become a global center of innovation excellence.  To succeed in this ambitious initiative, the academic, business, and entrepreneur communities will need to collaborate closely.  In my view this commitment to collaborate is in place. I also believe that the greatest challenge for the region will be overcoming cultural biases that punish risk-taking and are intolerant of failure in the process of building new companies…

Below are selections from my formal remarks:

“… While many countries have accelerated their national research and development investments and funded national venture capital ecosystem development programs, there is still no proxy for the scale that has been achieved in the US, particularly in Silicon Valley itself.

The challenge that many regions face in seeking to become innovation centers of excellence can be summed up in one sentence:

Good ideas are generated from all corners of the earth, but few regions offer a complete and cost-effective ecosystem to develop these good ideas into great companies.

Why is this the case?

Silicon Valley has proven its fertility in giving birth to world changing technologies over many decades; its inspiration to the entire world has grown exponentially over the past 20 years because the Internet has empowered millions of previously unconnected individuals to collaborate, enabling information about anything to be shared globally and discussed in real time through audio and video conferencing on an unprecedented scale and at extremely low cost.

But it is not enough to simply have technology tools and risk capital in hand to build a sustainable innovation ecosystem.

For Salzburg to succeed as an innovation hub, it is essential for local private sector business leaders to make a long-term, active, and visible commitment to be active partners in this process.

How can Fachhochshule Salzburg act to further catalyze and contribute to a complete and cost-effective ecosystem for innovation?

How can the Salzburg community come together to nurture ideas into startups and see these startups grow into globally relevant companies?

How can we transform the Salzburg region’s traditional rural economy into a knowledge based, innovative business community?

First, we need to differentiate between whether Salzburg should prioritize the funding of entrepreneurs who are pursuing breakthrough innovation as opposed to incremental innovation. Pursuing breakthrough innovation can lead an emerging company to global scale more quickly, whereas incremental innovation leaves a resource-constrained startup vulnerable to both entrenched and emerging competition, especially in a regional innovation center.

Many entrepreneurs confuse what may be an exciting idea that is only a feature with a truly innovative concept that can become a standalone company. For example, today, designing a smartphone App that alerts you when you have lost your car keys isn’t a viable standalone company; today, a service-based local software solution to manage ecommerce for brick and mortar companies, even if it is profitable, is not an interesting technology investment.

In contrast, consider a patented, proprietary software platform that verifies whether goods are authentic or counterfeit. When that solution combines low-cost, unique labels that are a fraction of the cost of all other solutions, and uses an App on your smartphone to interact with your customers in a manner that has previously been considered impossible, that is an example of an innovative company. Not only does that company exist, it is Salzburg’s own Authentic Vision—and you will hear more from co-founder Thomas Weiss later this evening when he tells you about his journey as a Salzburg entrepreneur.

… Because of Silicon Valley’s large private risk capital pools and attractive startup ecosystem, many startups based on incremental innovation have flourished, but the long-term survivors, now industry leaders, remain few in number—this is a widespread reality in the world of technology: think of the semiconductor industry’s implosion since the 1980’s; the browser, search engine, and ecommerce wars of the late ‘90’s; and the social media wars of the 2000’s—giants have emerged, but many more players have fallen on the battlefield. Let’s not forget that Microsoft had a huge monopoly in operating systems in the 90’s. Apple’s iOS & Google’s Android emerged, challenged, and overtook operating system dominance in the space of a few short years.

In America, Silicon Valley’s cycles of creative destruction and renewal continuously spawn many new challengers– by funding multiple startups that compete relentlessly until they reach dominant self-sustainability, acquisition by a competitor, or bankruptcy. This has not occurred without excess and without some years recording staggering losses.

But the fundamental concept that entrepreneurs have the freedom to fail, and that, if they are worthy, the resources are out there to support them to try again, is at the core of the culture of entrepreneurial success that defines Silicon Valley.

Ideally, innovative startups should be built on ideas that face little or no competition—and this is one of Peter Thiel’s key messages to entrepreneurs who want their startups to be “born global”. Peter Thiel was born in Germany, co-founded PayPal and Palantir, and is one of the most successful venture investors in the world through his Founders Fund. He published the book Zero to One in 2014 . In this book Thiel urges entrepreneurs to pursue only breakthrough innovation: “don’t compete, truly innovate—competition sucks your profits away—find a way to have a monopoly.”

Thiel’s core thesis to get from zero to one is all about breaking through and doing something really new, and he encourages starting on a small scale: “Start small and monopolize.Once you create and dominate a niche market, then you should gradually expand into related and slightly broader markets.”

With this in mind, and of direct relevance to Salzburg’s entrepreneurial initiative, I will now point out several of the most important elements for establishing a successful center for global excellence in innovation and assess their viability in Salzburg:

Defining a Global Center

To be more than moderately successful today, any startup’s potential must be considered on a global scale from its inception. This means that all entrepreneurs must be aware of competing global technologies and try not to step directly in their paths— I have visited entrepreneurs from Finland to Shanghai to Santiago who are simply not doing the work required to be aware of the best in class technologies, of their competitors at other startups, and they don’t really know how to find out what is happening in Silicon Valley.

Silicon Valley Special

In closing, I would like to highlight how we believe that Salzburg can be transformed into a vibrant global center of innovation excellence. Salzburg is blessed with several key elements that are necessary preconditions for a global innovation center of excellence to emerge …

I do see challenges with respect to overcoming some of the cultural barriers to an entrepreneurial culture—specifically in developing and nurturing a cultural understanding and tolerance for entrepreneurial failure. But at the same time I am convinced that there is a real opportunity for global collaboration, supported in partnership with leading international corporations from the Salzburg business community, that can attract the best and the brightest entrepreneurs to FH Salzburg.”

Salzburg Advantages

Governance Models That Don’t Scale: The World According to Charles T. Munger and Jean Jacques Rousseau

JJRMungerCan you name five benign dictators who have ruled successfully for any meaningful period of time (non-fiction)? Can you name five successful, long serving CEO’s (excluding Warren Buffett) whose governance histories are free of the “high-beta” associated with outliers such as Larry Ellison and Steve Jobs?

It’s not easy. Why? Because enlightened dictators and their corporate CEO equivalents are very, very rare; maintaining immunity to the intoxicating effects of power challenges basic human nature.

It is in this context that I found “Corporate Governance According to Charles T. Munger”, a brief article from the Stanford Closer Look Series, thought provoking if not practical. The article was written by David Larker, Director of the Corporate Governance Research Program at the Stanford Graduate School of business, and Brian Tayan, a researcher with Stanford’s Corporate Governance Research Program.

The authors summarize and explain Berkshire Hathaway Vice Chairman Charles T. Munger’s unorthodox view of a model for corporate governance.    According to the article, Munger believes that corporations and their boards should empower their CEO’s more, not less. Munger’s effective CEO, modeled, of course, on Warren Buffet, should be unencumbered by rigid process and freed of unnecessary, excessive checks and balances. Why? So that the CEO can lead effectively. How? In Munger’s construct, CEO’s police themselves, holding themselves accountable to their loosely overseeing directors by binding themselves to a trust based system. And corporate directors should reward these CEO’s for creating shareholder value, while deliberately underpaying them in terms of their annual salary-based cash compensation. According to Munger, and as quoted in the article:

“Good character is very efficient. If you can trust people, your system can be way simpler. There’s enormous efficiency in good character and dis-efficiency in bad character … We want very good leaders who have a lot of power, and we want to delegate a lot of power to those leaders…The highest form that civilization can reach is a seamless web of deserved trust—not much procedure, just totally reliable people correctly trusting one another.”

I agree with Mr. Munger completely, while asking the same questions raised by the authors at the end of this article:

“The trust-based systems that Munger refers to tend to be founder-led organizations. How much of their success is attributed to the managerial and leadership ability of the founder, and how much to the culture that he or she has created? Can these be separated? How can such a company ensure that the culture will continue after the founder’s eventual succession?”

Unfortunately, and founders notwithstanding, the collective global capitalist experience since private property rights were invented and enforced has shown that there aren’t enough of those people on this planet.

kozlowskimug1For a specific cautionary example, I am reminded of Tyco International and its former CEO, Dennis Kozlowski. Kozlowski was recently paroled, almost twelve years after his indictment, ultimate conviction, and after serving over eight years in Attica, for a $134 million corporate fraud (this amount represents a small fraction of the losses suffered by public shareholders). The disgraced former directors of Tyco International (vintage 1999), seemingly highly trustworthy and accomplished men and women, also come to mind. This group, along with the enterprise builders at Enron, Worldcom, and Adelphia, to name just a few, are at the top of my list of examples of poor corporate stewardship and help explain why Mr. Munger’s model for corporate governance is still-born.

But I did say the article was thought provoking, as Charles Munger’s corporate governance philosophy, in my view, evokes Jean Jacques Rousseau’s concept of the Lawgiver.  Author Alex Scott summarizes Rousseau’s core thesis from the Social contract succinctly in this excerpt from his book, The Conditions of Knowledge: Reviews of 100 Great Works of Philosophy :

“The general will always desires the common good, says Rousseau, but it may not always choose correctly between what is advantageous or disadvantageous for promoting social harmony and cooperation, because it may be influenced by particular groups of individuals who are concerned with promoting their own private interests. Thus, the general will may need to be guided by the judgment of an individual who is concerned only with the public interest and who can explain to the body politic how to promote justice and equal citizenship. This individual is the “lawgiver” (le législateur). The lawgiver is guided by sublime reason and by a concern for the common good, and he is an individual whose enlightened judgment can determine the principles of justice and utility which are best suited to society.”

I agree! Let’s find that individual and give him (or her) the keys to the public policy car! Munger’s corporate lawgiver, the enlightened CEO, is also an admirable model worth aspiring to emulate.

As with Rousseau’s 1762 treatise, history has sadly shown us that we lack sufficient incorruptible raw material across the entire history of mankind to render the “lawgiver” experiment successfully scalable, be it in public government or corporate governance.

The unbridled exercise of power is the ultimate intoxicant, and very few humans can responsibly limit the flow of that drug, especially not when they have are given the opportunity to administer it to themselves.

 

 

What’s Wrong With This Picture? Precipitous Decline in US Share of Global Equity Listings Continues Unabated

David Weild and Ed Kim originally exposed and reported extensively on the long-term decline in U.S. equity capital market share of public listings relative to other emerging and developed global markets.  Sadly, this graphic update confirms that the trend has gotten worse.  The implications for American innovation are negative.  New capital formation and new public equity listings are critical for economic growth.  New public equity listings provide  strong components of the lifeblood that nourishes economic growth at multiple levels.   Clearly, the root causes behind this trend have not been addressed in the financial and regulatory reforms implemented since A Wake Up Call for America was first published in 2009.

US Listings Decline

 

The 2009 Grant Thornton report proved without a doubt that the U.S. capital markets for listed equities have been in systemic decline since 1997.  This condition is clearly not the result of the technology bubble or Sarbanes Oxley. Most importantly, the absence of U.S. IPOs negatively impacts American entrepreneurs most of all, regardless of whether they have venture capital or private equity backing.

As of 2012, things have not changed much.  For an updated historical perspective on US IPO’s see the chart below:US-IPO-Activity-2002-2012 (1)

In 2012, of the 128 IPO’s completed in the US, the median deal size of $124 million marked a drop of 2% from 2011.  Excluding Facebook, total proceeds from US IPO’s declined by 27% in 2012 from 2011.  According to the Renaissance Capital report ,all the ten top performing companies’ stock prices and the worst performing companies’ stock prices were from IPO deal sizes exceed $50 million.  This data confirms the continuing absence of IPO’s whose proceeds are below $50 million—and this fact remains a major problem for promising US startups. Our country will continue to suffer the consequences of this trend as long as positive economics for supporting small cap companies in the market are absent.

What can we do about it? One possible solution to this trend would be to establish an issuer and investor opt-in capital market that would make use of full SEC oversight and disclosure, and could be run as a separate segment of NYSE or NASDAQ, or as a new market entrant.  It would offer:

  • Opt-in/Freedom of Choice – Issuers would have the freedom to choose whether to list in the alternative marketplace or in the traditional marketplace.
  • Public – Unlike the 144A market, this market would be open to all investors.
  • Regulated – The market would be subject to the same SEC corporate disclosure, oversight and enforcement as existing markets.
  • Quote driven – The market would be a telephone market supported by market makers or specialists, much like the markets of a decade ago.
  • Minimum quote increments (spreads) at 10 cents and 20 cents and minimum commissions – 10-cent increments for stocks under $5.00 per share, and 20 cents for stocks $5.00 per share and greater, as opposed to today’s penny spread market.  These measures would bring sales support back to stocks and provide economics to support equity research independent of investment banking.
  • Broker intermediated – Investors could not execute direct electronic trades in this market; buying stock would require a call or electronic indication to a brokerage firm, thereby discouraging day-traders from this market.

Research requirement – Firms making markets in these securities would be required to provide equity research coverage that meets minimum standards.

This idea has been presented to our legislators before but has not gotten any traction.  In my view, these new statistics reinforce the need to take another look at constructive, market-based solutions to a severe problem that continues to stifle US economic growth.

Pascal Levensohn in New York November 8: Speech at Museum of American Finance on Risks to Angel Investors

MoAF_GREEN_GREY300I first visited the Museum of American Finance a couple of years ago, and it is not only a great space,it is a useful resource for visitors interested in a wide range of current exhibits on current capital markets topics, as well as documents and artifacts related to capital markets, money and banking. The collection includes stocks, bonds, currency, checks, prints, engravings, photographs, objects and books. The Museum has an extensive collection of stock and bond certificates from the Gilded Age, from companies that include US Steel, Standard Oil and the New York Central Railroad.

But I am coming to the Museum to talk about the leading of edge of startup financing in the digital age and about real time investment risk management in the new Wild West– crowd-funded Silicon Valley post the lifting of the ban on General Solicitation. While new entities and forums are sprouting daily to facilitate aspiring venture investors to fund new ventures with as little as $2,500, the investing risks are no different than they were during the time of the iconic entrepreneur Andrew Carnegie.  And, to be clear, the risks of failure then and now remain very, very high.

My talk on November 8 is about some of the immutable laws of risk in startups. While you can package optimism in many different wrappers, in my view it is essential, especially for unsophisticated accredited investors, to understand critical concepts such as equity dilution from follow on rounds. And most important, they need to have some due diligence process in place before they writ the first check, as well as a similar re-evaluation process whenever they are called upon to fund a follow-on round.

I look forward to a lively discussion on November 8 at 12:30 PM.

New Video: Key Startup Investing Risks for Friends, Family, and Angel Investors

Establishing a mutual understanding between investors and entrepreneurs as to what each expects from the other is essential to a harmonious beginning for a new venture.

The future is likely to be challenging;  if entrepreneurs expect to be able to count on additional support from their friends, family, and Angel investors, several key risks that must be addressed in advance.  This video focuses on four of those fundamental risks:

(1) A startup’s high probability of failure;

(2) The mathematics of dilution;

(3) The tendency to misunderstand a company’s stage of development and, therefore, its capital needs;

(4) Understanding the risks associated with investing good money after bad and knowing when to call it quits.

Some important statistics:

In 2012, the average amount of seed or angel capital raised per company was $880,000 (Source: Pitchbook)

61% of seed-funded companies will not be able to obtain follow-on funding (Source: CB Insights)

Those seedlings that won’t find capital will be the victims of the so-called Series A Crunch

While seed investments increased by 64% in 2012, Series A investments declined by 2%. This defines a supply/demand imbalance exists between institutional VC capital and the ‘Seed Crowd’ .

It is a tribute to America’s innovation culture that, while most startups fail, we are currently experiencing such a boom in seed financing in the United States. Institutional venture capital is not increasing; on the contrary, the industry continues to consolidate by firm and is declining in total.

Being aware of the risks inherent to startup investing and having a clear understanding of the basic parameters of dilution mathematics should be helpful to investors and entrepreneurs alike.  If you are an entrepreneur, this video may be very helpful to you so that you can explain these risks to your investors.  If you are an investor in very early stage companies, this video provides useful perspective on risk and portfolio management.

This video is Chapter 2 of the Entrepreneur Essentials Video Series.

How to Sell High Quality Video Content to Your Fans Using Social Media: Introducing LittleCast

LittleCast LogoDigital content providers from traditional print media franchises to traditional television have finally figured out that giving away your valuable content on the Web will only accelerate your ability to go out of business.  We are still in the early days of video monetization, and one of the great gaps in the landscape has just been closed by a new startup, LittleCast, that I co-founded with Amra Tareen and Stephen Ackroyd.  What is the gap that LittleCast now fills?  The discovery problem that plagues most video content on the Web.

If nobody knows who you are, it doesn’t matter how great your content is, because you will remain unknown until you get lucky or become a one-hit wonder.  And the economics of advertising driven models for earning money are not very attractive for the content producer.

But on Facebook, LinkedIn, and Twitter, you are part of a community of people who opt-in to following you.  LittleCast lets any videographer sell video on social networks. The videographer sets the price and LittleCast does the rest: the solution publishes the video, of any length up to 3 hours, in standard definition or high definition, to social networks, iPhone, iPad and Android devices.

In addition, LittleCast provides detailed analytics and engagement tools to the videographer to manage the distribution, customer engagement and revenue.

LittleCast is extremely easy to use:  the process is entirely automated and self-serve.  It costs you nothing to try LittleCast—you upload content and start earning money as soon as your Facebook friends and fans buy your videos.  The economics are totally transparent and detailed on the LittleCast website, which is where you go to upload content: www.littlecast.com .

LittleCast has created a real–time mobile and social store for video; the platform is similar to eBay in that the content producer can set the price and change the price.  The viral nature of social networks will also maximize the reach of video sales among friends.  Try it, you’ll like it!

Introducing the Entrepreneur Essentials Video Series

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I’ve written about board governance challenges for startups since 1999, publishing one book, a series of three white papers, and many articles and blog posts on this topic. Because I am both a venture capitalist and a technology entrepreneur, I understand the different perspectives of entrepreneurs and investors from both sides of the boardroom table.

With this new video series, I updated and expanded fourteen years of collaborative work and have structured the content to focus on the entrepreneur’s perspective. The first video will be released on September 5.

Stay tuned for

Chapter 1      Board Dysfunction: Root Causes and Solutions

Chapter 2      Managing Risks in A Startup: Four Key Issues

Chapter 3      10 Things You Need to Know About VC’s (Before You Meet Them)

I intend to help management teams get much more of the flavor of the issues they will undoubtedly face as directors of startups.

Chapter 1, Board Dysfunction: Root Causes and Solutions, updates the material I have developed with other experienced investors and entrepreneurs, emphasizing the challenges that entrepreneurs face.

In these videos, I don’t just ask difficult questions, I answer them.

To learn more, go to my Facebook fan page Entrepreneur Essentials

The SRS 2012 Merger and Acquisition Terms Study: Comments on Key Findings

My comments on the key findings from the Shareholder Representative Services 2012 M & A Deal Terms Study are in bold:

Deal sizes: although the median deal size* rose slightly to $75 million in 2012 from $70 million in 2011, deals $50 million or less grew to 42% of deals in 2012, up from 33% in 2011. An increase in the percentage of smaller deals in and of themselves doesn’t tell us much.  I’d like to know what percentage of those acquisitions are takeunders versus takeovers—a takeunder in this case means that the consideration paid is less than invested capital.  That’s the key statistic on the health of the acquisition market from the 42%-of-the-market-seller’s perspective.

Seller financial performance: acquisitions remain heavily weighted toward Sellers with revenue, and Sellers in the aggregate continue to show improved earnings since 2009. Coupled with a slight increase in Seller-favorable terms generally, data suggests that some degree of market leverage is returning to Sellers that have survived the downturn even as M&A activity remains deliberate. I don’t believe this last point reflects the reality of the market– unless your company is cash flow positive, a ‘slight increase’ in Seller-favorable terms means nothing given the place form which we are starting:  highly favorable terms for the buyer.  The trends absolutely support that buyers are looking for non-dilutive acquisitions.

Cash vs. stock deals: cash is still king in M&A as long-term interest rates decline. That’s for sure!

Earn-outs: usage of financial metrics (revenue and earnings) and multi-metric achievement tests is declining, accompanied by a shift toward longer earn-out periods. Beware the earnout, it is often used by the buyer as a subterfuge for reducing the back-end payment of the acquisition.

Indemnification trends: median R&W survival periods and escrow sizes have leveled off at 18 months and 10–12% of transaction values, respectively, since 2009. Other terms are increasingly Seller favorable, for example, an increase in available offsets against Buyer indemnification claim amounts and requiring that claims exceed a minimum threshold.  I’ve seen very bad behavior here and am glad the median statistics show Seller favorable trends because it can’t get much worse than it has been…

Alternative dispute resolution (“ADR”): mandatory ADR such as mediation and arbitration has steadily declined since 2010, down to 26% of deals in 2012 from 41% in 2010. I am a strong advocate of binding ADR.  Large corporations like to avoid this because they want to wait the little guy out and they have plenty of salaried staff on hand to go to court or posture as if they are prepared to do so.  I’d like to see this trend reverse.

Post-closing expense funds: the median size as a percentage of the indemnification escrow continues to trend upward, at 2.08% in 2012. This is consistent with ADR declining, as more resources that should be going to shareholders are being wasted on post-closing disputes.

Liquidity for Venture Backed Companies Still Comes Largely in One Flavor—Cash Acquisitions

Denis Dougherty of Intersouth Partners was recently interviewed by Brian Gormley of The Wall Street Journal on the decade-long liquidity crisis that continues to plague the venture capital industry. Responding to the question “What do you see as the biggest investment opportunity for venture capital in 2013?”, Dougherty said, “If we have a broadly rebounding economy, the big corporations would begin to buy products and programs that they want to have, not just the ones that they have to have. Venture capitalists that have an inventory of acquisition-ready companies will do well.”

I agree with Dennis. My concern, based on my direct experience negotiating half a dozen acquisitions sine 2008 (three in 2012), both inside and outside of technology, is that the negotiating environment for such ‘acquisition-ready’ companies is fraught with challenge from the seller’s perspective.

Recent reports reveal that mergers and acquisitions still account for over 90% of liquidity events for venture-backed companies in 2012, a lamentable condition that has plagued the US innovation ecosystem for close to a decade. In my view, many acquisitions of emerging growth companies often lead to the burial of promising technologies by incumbents more focused on protecting market share than on delivering the best product or service to their customers… (think Linksys, Flip…)

It is critical to know the state of the art in merger terms leading to an acquisition and in post-merger covenants, particularly with respect to the release of cash consideration held in escrow or as a holdback by the buyer.

Shareholder Representative Services (SRS) has produced another excellent report that investors and management teams should scrutinize very carefully before engaging in merger negotiations.

I have one general comment to make about the SRS report before reviewing its key findings:

In any negotiation, just because the average term is X, you should not abdicate your responsibility to improve your position and negotiate to get a better outcome for yourself.  You may consider some terms to be acceptable in the agreement because your lawyers tell you “it’s the market” in the heat of battle.  That might be OK, but it also might be a rock that will not always be floating above your head…

Old Rag copy


Because the current world of venture-backed exits remains dramatically and asymmetrically skewed to the advantage of the acquirer, the aggregate statistics in the SRS report reveal a landscape pockmarked by buyer-friendly terms. Challenge yourself to do better as a seller!  More on this topic to follow…