Archive: stupid money

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!


Viral Social Commerce

These past months have, in a way that I would not have thought possible, created a start-up market situation closely resembling a certain period in time that we had in 1999. A number of new start-ups have sprung up that stem from what I call “feature-itis”, that is: their main business idea is not the creation of a value that addresses a particular market in a way that is commercially feasible, but much more the “hey- wouldn’t it be cool if it were possible to do this or that on the web” impulse.

If you sift through the business history of the first and second wave of the internet and try to analyze which companies ended up being successful, which companies were moped up as additional features to Yahoo! and bought out, and which companies simply failed, you find out that at the end of the day it’s not at all about a new economy, it’s about very old principles of

– servicing viable markets
- with a viable market proposition/value proposition
- and at an affordable price

in the widest sense of price, that is: convenience, access, time, budget and eventually price in dollars.

If we now look at what I like to call Web 3.0, that is, the commercial maturity of the social phenomena that we are observing with Web 2.0, then remembering that business history and applying the method of identifying customers for a market that are prepared to pay a given price, is a healthy mental exercise.

You’ll allow me to refer to myself and my earlier Blog entry about the distinction between Web 1.0, Web 2.0 and Web 3.0 and briefly describe Web 2.0 as the discovery that the internet is not only a repository for information and data, and a network through which e-mail and chat communication can happen, but has become a medium where

the human source of information

and human source of opinion and entertainment becomes as accessible as the data that he/she has created, that is at the core of the Web 2.0 social revolution. And as any revolution, it creates a whole new set of social behavioural changes, business opportunities, political implications and essentially an entirely new medium- which incidentally is not only confined to the Blog or Social Network phenomenon.

Stating these now commonplace insights into Web 2.0 leads me to reflect upon the Web 3.0 phenomenon, that is the commercial viability of all of these changes. As described in my Blog entry, I believe strongly that this will be the era where the source of data and information, and essentially this means the

human individual as a source of expertise,

can more and more market that expertise in many different ways- either

- by being accessible as an expert or
- by offering more in depth information or
- services related to the information
- transactions / products related to the information

for any kind of currency (this may be a social reward or a commercial reward/payment) in a variety of models that can range from subscription to micro-payments or even other forms of transaction that we may not yet even imagine (my informed hunch is “subscription” will mean many different rental models that are being imagined right now). As of now, the main focus of business endeavour in the Web 2.0 to Web 3.0 transition era, is to create and monetize exactly these kinds of platforms- much in the way that sevenload is doing for the video world.

In the future, business focus will be to harness the technologies, communication methods and social behaviour of Web 3.0 to create new value and new markets, thereby disrupting existing business structures. Increasingly, this will be achieved by individuals and small companies rather than larger companies.

The challenge is to identify these markets beyond advertising. If we look at what is happening right now in the Web 2.0 sphere, it is essentially one giant cannibalization of the editorial market, trying to supplement old media and replace them with “Facebook-”, “MySpace-”, and “YouTube-” (new) models of broad- and selfcasting and interaction with the user. That will, of course, be successful, but it is hardly imaginable that more than a productivity or effiency increase of more than 25-35% (maybe even 40% or 50% through better targeting) with relation to the advertising market can be sustained.

Even more market volume may be created by opening the advertising market to new segments that, until now, had a high cost barrier towards advertising, for example in the Long Tail of smaller and mid-sized companies, or in niche markets which had to rely on direct marketing because there was no medium for them to address at sales efficient cost on a large scale.

This disruption of the advertising marjet is of course fueled by the radically changed cost-dynamics of Web 2.0 platforms and the possibility to address the long-tail of content and offering highly specific audiences to as specific advertisers.

This opening of niche markets for advertising may one day – probably soon to come – come as far as user groups and communities centered around exotic topics such as the nuts and bolts of drilling joints (or something similar).

But by and all, if advertising is the only focus of what is happening right now, there will inevitably be a crunch at the moment of realization that there is just not enough money in these markets to create hundreds of new billion dollar companies. Even though a return to the Nuclear Winter of The Internet of 2001-2003 seems unlikely, it is highly probable that we will have a structurally similar shake-down and that just one or two more Yahoo!(s) or Google(s) will crop up, having found the holy grail of

on-demand fully trackable horizontal niche long tail CPA advertising

By the way, addressing that advertising market will also have to overcome a formidable opponent which is very well positioned to address the long-tail of advertising, and that is Google.

My point in this Blog post is that there have to be, and there will be business models beyond advertising and they are starting to emerge. Essentially these will be transaction based and will be centered either around the handling of goods in an e-commerce sense (that is already being seen in a number of start-ups) for example, by itravel, but there will also more and more be transaction platforms centered around services, much in the sourcing logic mentioned above.

The sum of these developments is what I call “viral social commerce”. It is viral in the sense that its dynamics of growth/expansion are very much word-of-mouth and very much based on the social phenomena of Web 2.0.

*I might add, that these phenomena are not new, word-of-mouth has always been the most powerful marketing instrument, it’s just that technology has enabled it to travel at light-speed, where before it was at a horse carriage pace.

It is social in the sense that, not only communication, but also increasingly parts of the production process and the definition of the product/service offered will be defined not by an entity that is producing it, but rather by a group of people or a community that adds a significant part of the value that is being created. An example for that is again itravel, where the travel community creates a lot of the product knowledge and even product sourcing that is necessary to create its catalogue of once-in-a-lifetime-experiences. Another example is ChariTees, where the community sources not only the designs, but also decides which designs will appear on t-shirts and also decides which institution would benefit from that part of the proceeds of ChariTees that is being spent on charity.

The commerce part of the “viral social commerce” idiom, reflects on what I was describing at the beginning of my post, namely that this is more than a social communication phenomenon and it is also more than pure interaction, it is in essence a whole new commercial dimension to what happens in our increasingly web-enabled society.

Viral social commerce is, for me, the essence of what will happen with Web 3.0. In my next post, I will describe how companies can confront this development and attain competitive advantages by harnessing them.

Musings on how to do the VC Round

I promised to blog my reflections on the 18-hour stint – well, here goes:

1) Provided you can choose from equal VC quality, choose a VC with an Office in your country -

2) or calculate three extra weeks on legal hassle because they just won’t understand your legal system (unless, of course, you share legal systems)

3) Be ready to bypass the lawyer of your VC at any moment (incl. @ 03h00 AM – myke sure you have a contact who will comply) – remember there may be a Principal-Agent-Problem between Vc and his Lawyer – the VC wants the deal @ good terms and low cost, but he wants the deal. A Bad Lawyer often raises his profile by being excruciating and blaming a bummed deal on you.

4) Align your Business Angels, if you have any, into your interest. If need be, point out that you can always gang up with the VC. But it is best if you don’t have to go there – that depends on the mentality of your BAs. I’ve seen both.

5) Don’t succomb to the enticements of the new. The nice great VCs who now are a tremendous success may just be your worst nightmare two years down the road, so remember to balance control power in your company. In the best of all worlds, as an entrepreneur, you get to pick who you work with on which issue because you gang up with the Business Angels if the VCs get unreasonable and you gang up with the VCs if the BAs get unprofessional or greedy. Make it clear that, while alle share the risk, you are the entrepreneur who is going to make it happen – or not.

6) Don’t overestimate yourself and consider – in your inner fort – the scenario if the company outgrows you or you get boreed. Few Entrepreneurs are as good in the 0 – 100 employees periods as the are in the 100 – 1000 or beyond periods. That was not an issue in my recent experience, but it is always worth remembering.

7) Don’t bind yourself to milestones. Business Plans are a process, not a bible. Focus on the metrics and never tie your investment capital to that. There is only one 100% sure fact about your business plan: it is not going to happen. The story will always be different, for better or for worse. So while building the structure of the company for the VC phase, make sure you have a tight-knit communication, frequent consultation infrastructure (Board) – share decision responsability. Stop selling your venture the minute the money is in the bank and all covenants are through (that’s why milestones are unwise for a VC too, because then reporting focuses on showing how milestones are met, not on the actual problems and necessary adjustments of and to the business model). Make sure you have VCs you are comfortable sharing your worse problems with.

In this sense, there is no real “stupid money” – you should always keep that communication line open so noone will feel thumped and try to get back at you (of that, the stupidest money sources are always capable). And sometimes even the worst moron will see something that you, in the Hamster wheel, won’t.

That’s a first – discussions welcome.

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