Archive: accountability

Reps and Warranties in Venture Capital Deals

This weekend a friend of mine called me up, as he was completing – as a leading seed investor – the first round (series A) of a company that I have a minority stake in. He told me that the round being negotiated was just short of Signing, as all main deal elements had been agreed with the investor (a large and well-known VC Fund), but there was one last point of contention left, and – big surprise! – that was Reps and Warranties.

That made me think once again about the peculiar habit of venture capitalists to turn Reps and Warranties almost as much a difficult topic as in M&A. If you think about the term “Venture Capital”, the whole concept is that you venture into something and there is no precisely NO guarantee of success.

Of course it makes full sense to commit founders to proper representation of the state the company is in and to also make them liable for the so-called Title Guarantees, in effect making sure that the shares being transferred to the investor are free of third party rights, are indeed constituted legally and are not subject to any limitations. However, I do not understand why these Reps and Warranties so often go to the core of the risks of the business model, thereby in effect giving the venture capital investment more the character of debt financing, disguised in the Reps and Warranties clause.

Why do I say this?

Because if a founder signs up for – say – a 3 Mil. Euro investment and the company fails due to an event that is at the core of the typical risk of the business model, this may create a warranty case that in the worst of all contract agreements may include full damage to be paid by the founder. This then means that the investor may get up to the total sum of that investment in damages from the founder because of an event that constituted the essence of the typical venture risk.

So put very bluntly, by enforcing Reps & Warranties covering business risks, the investor covered his venture risk by making the founder liable for failure of exactly that risk.

We all know that founders who may be otherwise admirable do not like to focus on legal details and may have bad luck in a choice of their attorneys.

That can be a deadly mistake.

When founders find themselves in such a contract situation, it is not just a reflection of poor negotiation skills on the side of the founders, who – one might argue a bit unfairly – therefore would not deserve anything better.

Such contract clauses are also always a case of misguided priorities on the side of the investor.

While as an investor I have full sympathy for contractual rules that prevent an irresponsible founder from walking away, as in the old adage “with my time and your money to waste, we have nothing to lose”.

However, it is equally unfair to put the investor of a venture in a position where his investment becomes more a case of debt with higher returns and higher default risk than of real venture investment. Moreover, discussions and probable litigation about business risk damage retribution by the founder can divert vital energy from surviving the damaging event, since both the founder and the investor will bes spending considerable time hedging their risks or enforcing their rights. THat can ultimately be much more damaging than the damaging event itself.

Here is my advice to founders in any negotiation about Reps and Warranties:

1) Before negotiation of deal terms, identify the natural risk of your business model

2) Prepare to describe and argue to the investor what the typical risk of the venture is and make it clear from the outset that that risk cannot will not be carried by the founder(s).

3) Make the investor acknowledge these risks early in the process of negotiating the terms

4) At term sheet level make sure that the basic principles guiding an equal distribution of reps and warranties rights between founder and investor include the following

a. Liability of founders is limited to willful behavior and gross negligence

b. There must be a cap of a certain percentage of the investment, in my opinion not more than 50% of the investment sum.

c. For all cases of non-willfull behavior the warranty term should be at most 12 months

d. Each founder is only liable for the fraction of the cap that corresponds to his fraction of shares in the entire company, so a co-founder who has 20 % of shares in a company shall only be liable up to 20% of the cap.

e. All shareholder managers with shares smaller than 7% should be exempt from any liability unless there is a specific reason for that.

f. Damages should be paid only to the extent that the Founder / Manager liable had best knowledge of the Warranty issue.

g. Retribution of damage should be limited to the damage that is incurred directly by the damaging event, confirmed by court ruling and could be reasonably expected. There should be no damage retribution for a loss of valuation of the company, which should be explicitly excluded. Valuation loss is usually covered by downround protection clauses.

h. Retribution of damage should be limited to such damages as cannot be corrected or “repaired”.

i. No damage retribution should be given for damages that are incurred due to lack of cooperation on side of the investor. This could include anything ranging from late payment of investment funds, lack of cooperation in litigation cases, failure of the board members dispatched by the investor to agree in litigating to avoid the damage, and so forth.

k. The most important advice that can be given to any founder signing Reps and Warranties is to put a large amount of energy into the due diligence and disclosure process and the documentation of that due diligence and disclosure process. THis is where attention to detail is a very necessary evil. The contract must include a clause that no events or fact about the company that were or could reasonable have been expected to be known to the investor at the time of the investment can lead to a claim of the investor against the founder. Thus claims are excluded if the the facts that led to the damage were known to the investor.

l. Negotiate all these points, then focus on disclosing well all risks that are part of the business model or lie within the company.


Often investors will present the founders with tough Reps and Warranties basically to incentivize them to puta significant amount of energy in thinking through the risks of the company and the development stage the company is at.

However, founders should rate their investors on the basis on their willingness to accept clauses that correspond with or at least resemble what I advise.

Good Luck!


What is Web 3.0 ? (revisited)

As always, that’s a difficult discussion. First of all it’s important to remember that “Versioning” the web is initially a marketing trick, albeit a powerful and a valid one. It does make sense to try to assess the pace and scope of change in and through the Digital Revolution. In our internal discussions at http://www.denkwerk.com we differentiate the technical, the social and the business levels of analysis. Our very broad clusters are as follows:

Web 1.0:
It is particularly inexact to retroactively dub the pre-2004 era as „Web 1.0“, since that is a rather vast period of time which underwent different phases in itself. When did it start? With Tim Berners-Lee & the appearance of Mozilla in 1993? With the first Social Network (sic!), the Well, in the 1980s?, With the ARPANET in 1968?

Tim O’Reilly coined “Web 2.0” as a call to reconsider the then ruling technical paradigms and the generalized underestimation of the social and economic impact of the internet in post-bubble headache times. But the 90s, the bubble, and 2001 – 2003 constitute a wild rollercoaster of different developments. In our view in short:

Technology:
The first simple websites evolved to more and more interactive, from static to dynamically generated, from handcrafted to cms-driven, from pure media to more and more transactive, and these vast increases in value remained through independently of the vast hyperbole of expectations that the New Economy and Irrational Exuberance engendered. In software paradigms though, simple web development and early script-based architectures and languages were supplanted by Enterprise Application thinking, the advent of web services, and the JAVA Revolution. After 2001, you were a wimp if you stuck to PHP.

Social:
Mostly Early Adopters went from discovering the web and portals as sources of information to accepting shopping, then dating and other increasingly interactive services and transactions.
The Internet, however, was never “lean-back”, a prerogative of TV.

Business:
The only really working business models (at high volumes) were
a) lead generation for existing brick and mortar business (“click and mortar”)
b) Online Advertising (mostly banner, after 2002 more and more search engine marketing)
c) E-Commerce (online sales, B2C or B2B )

BTW: Many ideas that now resurface in Web 2.0 were imagined just then, but failed because user behaviour and markets weren’t there yet. We founded http://www.oneview.com as a very early precursor of deli.cio.us, for example.

Web 2.0:
Somewhere around 2003, disgruntled entrepreneurs, the aforementioned PHP Wimps, the Linuxites, and others started reforming and having Galilean Moments („eppure si muove“ – “and the Earth does rotate”). That is what O’Reilly picked up at his conference in Fall 2004 when he coined Web 2.0.

Technology:
On the technology side, Web 2.0 can be oversimplified by describing it as a set of new or renewed technical paradigms:

a) the return of scripting and DHTML.
b) AJAX and the transformation of websites into dynamic applications
c) much faster development speed, prototyping
d) APIs and total interoperability of all digital services (mashups, microformats etc..), the rebirth of standards
e) the end of the concept of “the site”, with functionalities spreading across converging media (web, mobile, TV) instead

Social:
a) You Are Not Alone:
If “Web 1.0” was all about discovering the potential of interactive services, then Web 2.0 is the discovery of the Fellow Users, of the immense potential of finding online people that you can share interests and needs with.

b) You Can Do Things Together / User Generated Content:
New Web 2.0 tools let the vision of the web as a collaborative platform slowly become true: every type of content can be shared, discussed, rated, and messaging allows constant and instant, but also deferred and intermittent interlocution with other users (networking, messaging, Blogging, co-shopping etc…).

c) Mashup Everything / User Generated Functionalities:
The combination of different services, information, and functionalities that the technical paradigm shift of web 2.0 makes possible opens a whole new set of possibilities for networked and collaborative behaviour on the web that creates value from the wisdom of crowds and the knowledge of the few.

Business:
a) Businesses are under pressure and with the opportunity of adapting to the fact that the consumer / customer has an increasingly wide, reliable, and truthful range of sources of information and first-hand experiences with any given product.
b) Creating customer communities becomes increasingly relevant as a business factor. This increases the demand on long-term accountability and trustworthiness of business institutions
c) In the same vein, Business and Media monopolies on information and broadcasting power are dwindling with the advent of increasingly differentiated access to the opinions and knowledge of customers and the creation of increasingly valuable User Generated Content and Community-Based or Collaborative Functionalities. This doesn’t mean a perfect world of truthfulness, but it certainly shifts power to the customer.
d) an open question is by whom and how is this information power, the interlinking of customers, and the long tail of business, going to be aggregated, thus creating the next Googles?
e) On the long tail of business, even the most absurd niche markets can network worldwide, thus creating market volume until now completely untapped.

Web 3.0:
We don’t really need a new term – but it is clear that versioning will somehow be inflationary, since it is such a nifty marketing tool. So we might as well tackle the definition now (and secure some mind share early on, hehe).

In our view, Web 3.0 describes where the different patterns and revolutions might lead to. Think “minority report”, “Neuromancer”, “Matrix”, for early paradigms (not literally of course, we’re between 30 and 1000 years away from that). It is hard to describe and open for discussion, but we see the following trends:

Technology:
a) Interoperability and total convergence of all media and networks to form the Evernet
b) The End of The Site: Functionalities can be used by any user on any device in any network.
c) Everything is mashed or modular or snippeted or microformatted, so that a search on your handheld will deliver a topical article, four experts, seven alternative topical products to be ordered along with their ratings and reviews, three according services and information about what your friends or respected contacts think about the topic, all in one fell swoop.

Social:
a) The rise of the „Digital Boheme“ – in a No Man’s Land between employment, freelance and artistic lifestyle, everyone on the web can “market” whatever talents he has, whenever and however much he wants.
b) Thus, “virtual environments” will play a much bigger role in determining the social status of an individual much more than his geographic environment used to. In other words, the lost liberal hippie tech geek living in, say, Oklahoma suddenly gets a life and recognition – that’s one of the reasons for the hype about Second Life.
c) Thus a) and b) become more and more determining for the identity of the individual – with all due consequences
d) Technology and the networking of individuals and their expertise will lead to an increasingly efficient tapping of the Deep Web (that has been building up since 1974), thus creating a “semantic and human web”, where searching and finding delivers increasingly complex results, ranging from data / documents to Evernet functionalities and sites, to experts and interest groups and events.

Business – we call it VIRAL SOCIAL COMMERCE
In the virtual worlds of the web 3.0 or Evernet, every individual will get a much fairer share of his or her social and economic status. If until now, the consumer was an object of the economy, he increasingly becomes a an active element in every one of his areas of expertise and interests. (Someone who is into handmade puppets from the Münsterland [a region of Northern Germany] can connect to fans of handmade puppets worldwide an be recognized as an expert and set up business selling access, expertise, or even the puppets themselves – if he chooses to do so).

We could call it the Ebaying of life – but the differences to the Ebay model are:

a) it expands virally along social network lines
b) it is not focused on price, and probably not even profit-oriented, but is a blend of social and economic rewards that triggers individual behaviour
c) it is in an elementary sense democratic, with almost any space for very individual definitions of success and lifestyles.
d) thriving in such environments will require new business, communication, and marketing models in almost any industry.

In Science Fiction, the various visions of the emergence of a web interlinking society almost invariably include that web become a determining factor of social and economic status in the real world. We aren’t that far away from that, even if reality always tends to be mundane. What is almost certain is that already today, the web liberates the individual even from very difficult forms of seclusion, allowing him to overcome niche market intransparency and increase his social and economic impact in society.

What we are doing at sevenload (http://www.sevenload.com), itravel (http://www.itravel,de), oneview (http://www.oneview.com) and Qype (http://www.qype.com) is working toward that vision.

Join us, discuss, hire in, let’s create the tools of this evolution step by step!

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